U.S. Supreme Court

Held that state and local government entities are covered by the Age Discrimination in Employment Act regardless of their size. In an age discrimination suit brought by two firefighters, a fire district argued that it was too small to qualify as an employer under the ADEA because it had fewer than 20 employees. Disagreeing, the Supreme Court concluded that the ADEA's 20-employee coverage threshold is inapplicable to states and political subdivisions. Justice Ginsburg wrote the unanimous 8-0 opinion.

Reversed and remanded the Seventh Circuit's decision which had affirmed the district court's ruling in favor of defendant in a suit filed by an Illinois state employee who was not a member of a union, but who worked in a unionized employment unit. State law requires all employees of a unionized employment unit to pay an agency fee even if they are not in the union. Plaintiff challenged the constitutionally of the agency fees and the Supreme Court agreed, holding that the payment of agency fees by non-consenting employees violates the First Amendment, overruling Abood v. Detroit Bd. of Ed.

Reversed and remanded. The Railroad Retirement Tax Act of 1937 was enacted to provide pensions to railroad workers at a time when many railroads were on the brink of insolvency. Under the Act, railroads paid a tax based on employee incomes, but no tax was paid on payments made to employees in kind. To modernize the pension fund, stock options were adopted. Congress sought to tax the options. The Supreme Court held that employee stock options are not taxable under the Act because they are not money remunerations.

In a 5-4 majority, the Supreme Court issued a decision finding that foreign corporations are immune from suit for violations of international human rights under the Alien Tort Statute. The Court's decision is based on the broad idea that there is no corporate liability under international law--reasoning that would preclude liability for both foreign and domestic companies.

Justice Kennedy, who wrote the majority opinion, wrote: &ldquo;[A]llowing plaintiffs to sue foreign corporations under the ATS could establish a precedent that discourages American corporations from investing abroad, including in developing economies where the host government might have a history of alleged human rights violations, or where judicial systems might lack the safeguards of United States courts. And, in consequence, that often might deter the active corporate investment that contributes to the economic development that so often is an essential foundation for human rights.&rdquo; Justice Sotomayor dissents by saying:
There can be, and sometimes is, a profit motive for these types of abuses. Although the market does not price all externalities, the law does. We recognize as much when we permit a civil suit to proceed against a paint company that long knew its product contained lead yet continued to sell it to families, or against an oil company that failed to undertake the requisite safety checks on a pipeline that subsequently burst.

(U.S. Supreme Court) In a suit arising out of a sex discrimination charge filed with the EEOC by a former employee, who failed a physical evaluation following her return from maternity leave, against her former employer under Title VII of the Civil Rights Act of 1964, the Ninth Circuit Court of Appeals' decision -- reversing the district court's decision to not enforce EEOC subpoenas, as authorized by 42 U. S. C. section 2000e-9, requesting 'pedigree information' (names, Social Security numbers, addresses, and telephone numbers of employees asked to take the evaluation) from defendant, and finding that the pedigree information was not relevant to the charges -- is vacated where a district court's decision whether to enforce or quash an EEOC subpoena should be reviewed for abuse of discretion, not de novo.

In a suit brought by a former U.S. Postal Service employee, alleging discrimination or retaliation in violation of Title VII of the Civil Rights Act of 1964, 29 CFR section1614.105(a)(1), the Tenth Circuit's judgment upholding the District Court's dismissal of the complaint as untimely, is reversed where: 1) because part of the "matter alleged to be discriminatory" in a constructive-discharge claim is an employee's resignation, the 45-day limitations period for such action begins running only after an employee resigns; and 2) a constructive-discharge claim accrues--and the limitations period begins to run--when the employee gives notice of his resignation, not on the effective date thereof.

In a case brought by nonprofit organizations that provide health insurance to their employees, challenging the federal regulations require them to cover certain contraceptives as part of their health plans, unless they submit a form either to their insurer or to the Federal Government, stating that they object on religious grounds to providing contraceptive coverage, and alleging that submitting this notice substantially burdens the exercise of their religion, in violation of the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, 42 U.S.C. section 2000bb, the Court, following oral argument and supplemental briefing from the parties: 1) vacates the judgments below and remands to the respective United States Courts of Appeals for the Third, Fifth, Tenth, and D.C. Circuits, in light of the positions asserted by the parties in their supplemental briefs; and 2) expresses no view on the merits of the cases.

Respondents, employees of petitioner Tyson Foods, work in the kill, cut, and retrim departments of a pork processing plant in Iowa. Respondents' work requires them to wear protective gear, but the exact composition of the gear depends on the tasks a worker performs on a given day. Petitioner compensated some, but not all, employees for this donning and doffing, and did not record the time each employee spent on those activities. Respondents filed suit, alleging that the donning and doffing were integral and indispensable to their hazardous
work and that petitioner's policy not to pay for those activities denied them overtime compensation required by the Fair Labor
Standards Act of 1938 (FLSA). Respondents also raised a claim under an Iowa wage law. They sought certification of their state claims
as a class action under Federal Rule of Civil Procedure 23 and certification of their FLSA claims as a "collective action."

In a class action alleging a Navy contractor violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. section 227(b)(1)(A)(iii), which prohibits using any automatic dialing system to send a text message to a cellular telephone, absent the recipient's prior express consent, the Ninth Circuit's reversal of the district court's grant of summary judgment to defendant contractor is affirmed where: 1) an unaccepted settlement offer or offer of judgment does not moot a plaintiff's case, so the district court retained jurisdiction to adjudicate plaintiff's complaint; and 2) defendant's status as a federal contractor does not entitle it to immunity from suit for its violation of the TCPA.

To prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer's decision, not that the employer had knowledge of his need. Title VII's disparate-treatment provision requires Elauf to show that Abercrombie (1) "fail[ed] . . . to hire" her (2) "because of " (3) "[her] religion" (including a religious practice). 42 U. S. C. §2000e2(a)(1). And its "because of" standard is understood to mean that the protected characteristic cannot be a "motivating factor" in an employment decision. §2000e2(m). Thus, rather than imposing a knowledge standard, §2000e2(a)(1) prohibits certain motives, regardless of the state of the actor's knowledge: An employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions. Title VII contains no knowledge requirement. Furthermore, Title VII's definition of religion clearly indicates that failure-to-accommodate challenges can be brought as disparate-treatment claims. And Title VII gives favored treatment to religious practices, rather than demanding that religious practices be treated no worse than other practices.

In an unlawful hiring case, the Seventh Circuit's holding that the EEOC's conciliation obligation with employer was unreviewable is reversed where: 1) courts have authority to review whether the EEOC has fulfilled its Title VII duty to attempt conciliation; and 2) the appropriate scope of judicial review of the EEOC's conciliation activities is narrow, enforcing only the EEOC's statutory obligation to give the employer notice and an opportunity to achieve voluntary compliance.

When plaintiff became pregnant, she was told by her employer, defendant United Parcel Service, that she could not work while under a pregnancy lifting restriction due to the nature of her job as a part-time driver handling packages. Plaintiff alleges that defendant acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction. Plaintiff further alleges that defendant had, pursuant to its internal policies, accommodated several individuals whose disabilities created work restrictions similar to hers. The district court granted summary judgment in favor of defendant, and the Fourth Circuit affirmed. The judgment is vacated and the case is remanded, where: 1) the Pregnancy Discrimination Act requires that employers provide similar accommodations as they do to any other persons who are similar in their ability or inability to work; 2) a pregnant worker demonstrating disparate treatment may make out a prima facie case under the McDonnell Douglas framework by showing that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others similarly situated in their ability to work; 3) there is a genuine dispute as to whether defendant provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from plaintiff's; 4) plaintiff introduced evidence that defendant had three separate accommodation policies, and taken together, these policies significantly burdened pregnant women; and 5) the Fourth Circuit did not consider the combined effects of these policies, nor did it consider the strength of defendant's justifications for each when combined.

When plaintiff became pregnant, she was told by her employer, defendant United Parcel Service, that she could not work while under a pregnancy lifting restriction due to the nature of her job as a part-time driver handling packages. Plaintiff alleges that defendant acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction. Plaintiff further alleges that defendant had, pursuant to its internal policies, accommodated several individuals whose disabilities created work restrictions similar to hers. The district court granted summary judgment in favor of defendant, and the Fourth Circuit affirmed. The judgment is vacated and the case is remanded, where: 1) the Pregnancy Discrimination Act requires that employers provide similar accommodations as they do to any other persons who are similar in their ability or inability to work; 2) a pregnant worker demonstrating disparate treatment may make out a prima facie case under the McDonnell Douglas framework by showing that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others similarly situated in their ability to work; 3) there is a genuine dispute as to whether defendant provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from plaintiff's; 4) plaintiff introduced evidence that defendant had three separate accommodation policies, and taken together, these policies significantly burdened pregnant women; and 5) the Fourth Circuit did not consider the combined effects of these policies, nor did it consider the strength of defendant's justifications for each when combined.

In this case, in 2006 the Department of Labor's Wage and Hour Division (the Department) issued an opinion letter finding that mortgage-loan officers fell within the administrative except to overtime pay requirements under the Fair Labor Standards Act (FLSA), and in 2010 the Department withdrew the 2006 opinion letter without notice or an opportunity to comment and issued an Administrator's Interpretation concluding that mortgage-loan officers do not qualify for the administrative exception. Respondent filed suit contending that the Administrator's Interpretation was procedurally invalid under the D.C. Circuit's decision in Paralyzed Veterans of Am. v. D.C. Arena L.P, which holds that an agency must use the Administrative Procedure Act's (APA) notice-and-comment procedures when it wishes to issue a new interpretation of a regulation that deviates significantly from a previously adopted interpretation. The district court granted summary judgment to the Department, but the D.C. Circuit applied Paralyzed Veterans and reversed. The judgment of the circuit court is reversed, where: 1) the Paralyzed Veterans doctrine is contrary to the clear test of the APA's rule making provisions and improperly imposes on agencies an obligation beyond the APA's maximum procedural requirements; and 2) APA section 4 specifically exempts interpretive rules from notice-and-comment requirements.

In this case, plaintiff retired employees sued defendant, their former employer, asserting that certain expired collective-bargaining agreements created a right to lifetime contribution-free healthcare benefits for retirees, their surviving spouses, and their dependents. The Sixth Circuit sided with the retirees, arguing under International Union, United Auto, Aerospace &amp; Agricultural Implement Workers of Am. v. Yard-Man, Inc. that retiree healthcare benefits are unlikely to be left up to future negotiations. The judgment of the Sixth Circuit is vacated and the case is remanded, where Yard-Man inferences are inconsistent with ordinary principles of contract law, given that: 1) retiree healthcare benefits are not a form of deferred compensation; 2) requiring a contract to include a specific durational clause for retiree healthcare benefits to prevent vesting conflicts with the principle of contract law that the written agreement is presumed to encompass the whole agreement of the parties; and 3) when a contract is silent as to the duration of retiree benefits, a court may not infer that the parties intended those benefits to vest for life.

In this case, petitioner-employer required its employees to undergo an antitheft security screening before leaving the warehouse each day. Judgment in favor of respondent-employees is reversed, where the time that employees spent waiting to undergo and undergoing the security screenings is not compensable.

The whistleblower protection provisions of the Sarbanes-Oxley Act of 2002 contained in 18 U. S. C. section 1514A include employees of a public company's private contractors and subcontractors when they report covered forms of fraud.

Summary judgment to defendant-employer in a putative collective action under the Fair Labor Standards Act of 1938, seeking backpay for time spent donning and doffing pieces of protective gear that they assert defendant-employer requires workers to wear because of hazards at its steel plants is affirmed, where: 1) 29 U. S. C. section 203(o) allows parties to collectively bargain over whether time spent in changing clothes at the beginning or end of each workday must be compensated; and 2) the time plaintiffs spend donning and doffing their protective gear is not compensable by operation of section 203(o) because it qualifies as "changing clothes" under that section.

Writ of certiorari is dismissed as improvidently granted in an action in which the Eleventh Circuit held that: 1) certain promises made by an employer to a union are things of value; 2) an employer's promise to pay them in return for something of value from the union violates the Labor Management Relations Act if the employer intends to use the payment to "corrupt" the union; and 3) a union's request that an employer make such a payment violates section 302(b) of the Act if the union intends to "extort" the benefit from the employer.

Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in 42 U.S.C. section 2000e-2(m), the motivating-factor test, and therefore the Fifth Circuit\\\'s finding for plaintiff on his retaliation claim using the motivating-factor test is vacated and remanded.

An employee is a "supervisor" for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim, and thus, summary judgment to defendant-employer is affirmed.

The Virginia State Supreme Court correctly concluded that Section D of Va. Code Ann. Section 20-111.1 is preempted by The Federal Employees' Group Life Insurance Act of 1954 (FEGLIA), where: 1) FEGLIA establishes an insurance program for federal employees, permitting an employee to name a beneficiary of life insurance proceeds, and specifies an "order of precedence" providing that an employee's death benefits accrue first to that beneficiary ahead of other potential recipients; 2) Section D of the Virginia statute provided a cause of action rendering a former spouse liable to the current spouse for the principal amount of life insurance proceeds left to them by the deceased, where there has been a change in the decedent's marital status but the deceased failed to change the designated beneficiary; and 3) Section D of the Virginia statute conflicts with the purposes and objectives of Congress

A collective action under the Fair Labor Standards Act of 1938 (FLSA) on behalf of respondent and other employees similarly situated, was appropriately dismissed for lack of subject-matter jurisdiction where, after she ignored petitioners' offer of judgment under Federal Rule of Civil Procedure 68, respondent had no personal interest in representing putative, unnamed claimants, nor any other continuing interest that would preserve her suit from mootness.

In an ERISA action under section 502(a)(3), which authorizes health-plan administrators to bring a civil action to obtain appropriate equitable relief to enforce the terms of the plan, based on an equitable lien by agreement, the ERISA plan's terms govern. Neither general unjust enrichment principles nor specific doctrines reflecting those principles, such as the double-recovery or common-fund rules, can override the applicable contract.

In a federal employee's mixed case action against the Department of Labor, alleging, inter alia, unlawful sex and age discrimination and discriminatory removal, the Court of Appeals' decision affirming the Federal District Court's dismissal for lack of jurisdiction is reversed and remanded where: 1) a federal employee who claims that an agency action appealable to the MSPB violates an antidiscrimination statute listed in section 7702(a) should seek judicial review in district court, not the Federal Circuit, regardless of whether the MSPB decided her case on procedural grounds or on the merits; and 2) sections 7703 and 7702 of the CSRA direct employees like plaintiff to the district court.

In plaintiff's suit against its former employees alleging that defendants had breached their noncompetitive agreements, the judgment of the Oklahoma Supreme Court declaring the agreements in the employment contracts null and void is vacated where it is for the arbitrator to decide in the first instance whether the covenants not to compete are valid as a matter of applicable state law.

In a class action brought on behalf of nonunion employees who paid into a union's "Emergency Temporary Assessment to Build a Political Fight-Back Fund," alleging the union's violation of their First Amendment rights, the Ninth Circuit's decision in the union's favor, concluding that Teachers v. Hudson, 475 U. S. 292, 302-311, prescribed a balancing test under which the proper inquiry is whether the union's procedures reasonably accommodated the interests of the union, the employer, and the nonmember employees, is reversed where: 1) this case is not moot and a live controversy remains, even though the union offered a full refund to all class members after certiorari was granted; and 2) under the First Amendment, when a union imposes a special assessment or dues increase levied to meet expenses that were not disclosed when the regular assessment was set, it must provide a fresh notice and may not exact any funds from nonmembers without their affirmative consent.

In an action by pharmaceutical sales representatives alleging violations of the Fair Labor Standards Act (FLSA) for failure to pay overtime wages, 29 U.S.C. section 207(a), the Ninth Circuit's decision denying plaintiffs' motion to alter or amend the judgment and affirming summary judgment to employer, is affirmed where the sales reps qualify as outside salesmen under the most reasonable interpretation of the Department of Labor's regulations, and are therefore exempt from the overtime wage requirement.

In a suit brought by federal employees discharged pursuant to 5 U.S.C. section 3328, which bars from Executive agency employment anyone who has knowingly and willfully failed to register for the Selective Service as required by the Military Selective Service Act (MSSA), 50 U.S.C. App. section 453, claiming that section 3328 is an unconstitutional bill of attainder and unconstitutionally discriminates based on sex when combined with the MSSA's male-only registration requirement, the First Circuit's dismissal for lack of jurisdiction is affirmed where the Civil Service Reform Act of 1978 (CSRA) precludes district court jurisdiction over petitioners' claims, because it is fairly discernible that Congress intended the statute's review scheme to provide the exclusive avenue to judicial review for covered employees who challenge covered adverse employment actions, even when those employees argue that a federal statute is unconstitutional.

In a suit alleging that a state employer violated the Family and Medical Leave Act of 1993, 29 USC section 2612(a)(1)(D), by denying the plaintiff self-care leave, dismissal is affirmed, with four justices holding that suits against states under the self-care provision are barred by sovereign immunity, where the sex-based discrimination that supports allowing section 2612(a)(1)(C) suits against states--for denying leave for the care of a spouse, son, daughter, or parent with a serious medical condition--is absent with respect to the self-care provision

In a suit under the Longshore and Harbor Workers' Compensation Act for injuries sustained in 2002 at an Alaska marine terminal while working for the respondent, an award of benefits at the fiscal year 2002 statutory maximum rate is affirmed, as an employee is "newly awarded compensation" under the Act when he or she first becomes disabled and thereby becomes statutorily entitled to benefits, no matter whether, or when, a compensation order issues on his or her behalf.

In an appeal from a judgment of the appeals court vacating an administrative dismissal of respondent's Outer Continental Shelf Lands Act (OCSLA) claim for benefits as a surviving spouse, judgment is affirmed where a claimant seeking benefits under the OCSLA must establish a substantial nexus between the injury and extractive operations on the shelf.

In a dispute concerning the appropriate causation instruction to give the jury in a claim under the Federal Employers' Liability Act (FELA), judgment of the appeals court is affirmed where consistent with the FELA's text and purpose, Rogers v. Missouri Pacific R. Co., and the uniform view of the federal appellate courts, FELA does not incorporate stock proximate cause instruction standards developed in nonstatutory common-law tort actions

In an action by current or former employees of petitioner Wal-Mart, seeking injunctive and declaratory relief, punitive damages, and backpay, on behalf of themselves and a nationwide class of some 1.5 million female employees, because of Wal-Mart's alleged discrimination against women in violation of Title VII of the Civil Rights Act of 1964, the certification of the class and backpay claims are reversed where: 1) certification of the plaintiff class was not consistent with Rule 23(a); and 2) respondents' backpay claims were improperly certified under Rule 23(b)(2).

In an ERISA dispute involving the District Court's authority to reform a pension plan, judgment of the appeals court is reversed where although ERISA section 502(a)(1)(B) did not give the District Court authority to reform petitioner's plan, equitable relief may be fashioned from section 502(a)(3).

In dispute involving the scope of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), if a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then employer is liable under USERRA.

In an action brought under Title VII of the Civil Rights Act by a man claiming he was fired by his employer in retaliation for his fiancee's filing of an EEOC complaint against the same employer, the Sixth Circuit's affirmance of District Court's grant of summary judgment in favor of employer are reversed and remanded where: 1) if the facts the worker alleges are true, his firing constituted unlawful retaliation; and 2) Title VII grants worker a cause of action.

In an action claiming that NASA's National Agency Check with Inquiries background check process violated a constitutional right to informational privacy, the Ninth Circuit's reversal of the district court's denial of a preliminary injunction is reversed where, assuming, without deciding, that the government's challenged inquiries implicated a privacy interest of constitutional significance, that interest, whatever its scope, did not prevent the government from asking reasonable questions of the sort included on the forms at issue in an employment background investigation that was subject to the Privacy Act's safeguards against public disclosure.

In an employment discrimination action, the Ninth Circuit's reversal of the district court's dismissal of the action based on the parties' agreement to arbitrate is reversed where, under the Federal Arbitration Act, where an agreement to arbitrate includes an agreement that the arbitrator will determine the enforceability of the agreement, if a party challenges specifically the enforceability of that particular agreement, the district court considers the challenge, but if a party challenges the enforceability of the agreement as a whole, the challenge is for the arbitrator.

In an appeal from the Seventh Circuit's denial of petitioners' petition for review of the National Labor Relations Board's (NLRB) finding that petitioners committed unfair labor practices, the order is reversed where section 3(b) of the National Labor Relations Act requires that a delegee group of the NLRB maintain a membership of three in order to exercise the delegated authority of the Board.

In a Title VII action challenging Chicago's practice of selecting only applicants who scored 89 or above on a written examination because of its disparate impact on African-Americans, the Seventh Circuit's reversal of judgment for plaintiff is reversed where a plaintiff who does not file a timely charge challenging the adoption of a practice may assert a disparate impact claim in a timely charge challenging the employer's later application of that practice as long as he alleges each of the elements of a disparate impact claim.

In an arbitration before the National Railroad Adjustment Board (NRAB) between a railroad and a union regarding disciplinary action against certain employees, a circuit court's order reversing the NRAB's dismissal of the arbitration for failure to conduct a pre-arbitration conference is affirmed where, by refusing to adjudicate the cases on the false premise that it lacked jurisdiction to hear them, the NRAB panel failed to conform, or confine itself, to matters Congress placed within the scope of NRAB jurisdiction.

First Circuit

Reinstated a university professor's claims that she was retaliated against in violation of Title VII and the Maine Human Rights Act. The professor alleged that she was transferred to a different department and suffered other retaliation after she complained of being sexually harassed by her department chair. Agreeing that genuine disputes of material fact existed, the First Circuit reversed the entry of summary judgment for the university and remanded.

Reinstated an employee's claims that she was harassed based on her age and retaliated against in violation of both federal and Puerto Rico law, claims which had been dismissed on summary judgment. The employee argued that there were genuine disputes of material fact. In reversing summary judgment, the First Circuit agreed with the employee's argument that genuine disputes of material fact existed as to certain claims.

Affirmed a judgment on the pleadings against the U.S. Department of Labor, the plaintiff in a labor action against a union. In affirming the judgment, the First Circuit held that the labor union did not violate the Labor-Management Reporting and Disclosure Act when it refused to allow one of its members to take notes while inspecting its collective bargaining agreements with other employers as the member's statutory right to inspect the agreements did not encompass a right to take notes during the process.

Affirming the district court's grant of summary judgment and treble damages under the Massachusetts Wage Act for the plaintiff who alleged that defendant failed to pay all of her wages due at the time of her termination, instead making them at a later date.

In this wrongful employment termination case, the appellate court affirmed the judgment of the trial court awarding 1.3 million in damages on the discrimination claim and 1.3 million in punitive damages. Defendant appealed arguing insufficient evidence to support punitive damages; and reversible error for sanctions for removing entry of default and allowing hostile work environment theory not explicitly pled to go to the jury. The appellate court stated that defendant largely lost the appeal for failure to make appropriate objections and offers of proof before the trial court. Further, the appellate court stated that there was sufficient evidence to support the damages award both compensatory and punitive. The court agreed that the trial court erred by imposing a default sanction order, but there was no showing that defendant was prejudiced by it or by the hostile work environment claim.

Affirming the district court grant of summary judgment as to hostile work environment and retaliation claims by a female Puerto Rico Corrections Department employee who was transferred and replaced by male employees but vacating and remanding the summary judgment as to a disparate treatment claim because the court used an erroneous interpretation of caselaw to prohibit the plaintiff from relying on evidence relating to qualifications as an element of her prima facie case.

Affirming a district court order upholding the Social Security Administration's denial of an application for Social Security Disability Insurance Benefits and Supplemental Security Income in the case of a former cook who was shown to be able to continue with light work

Affirming a judgment that a Rhode Island fire department had engaged in gender discrimination and retaliation for their vile treatment of a woman on the job and the award of front pay and emotional damages because, in the words of the court, they declined to put out the fire of the department's own making.

In a case in which an employee was purportedly terminated for violating his hospital employer\'s civility policy, following a heated exchange regarding a union delegate\'s alleged remark that plaintiff had to join the union in order to work at the hospital, and in which the NLRB found that the union caused employer to discharge plaintiff because of his protected conduct, in violation of Section 8 of the National Labor Relations Act (NLRA), the defendant\'s petition for relief is granted and the NLRB\'s application for enforcement order is denied where: 1) there is considerable contradictory evidence in the record that the NLRB failed to consider; and 2) on the record as a whole, there is not substantial evidence that plaintiff was discharged because of his protected conduct.

In a suit brought by a police officer claiming she suffered discrimination in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. sections 12101-12213, and its state-law corollary, Massachusetts General Laws chapter 151B section 4, when the defendants failed to accommodate her request for transfer to another position in the Department after she sustained an on-the-job injury, as well as retaliation and gender discrimination claims, the district court's rejection of the claims is affirmed where: 1) plaintiff offered no evidence that there were any vacancies when she asked for an accommodation, and it was her burden to show as much; 2) the ADA retaliation claim was either not pleaded or waived; and 3) plaintiff failed to establish a prima facie claim of gender discrimination.

In an employment class action alleging violations the Fair Labor Standards Act (FLSA), 29 U.S.C. section 201-219, as well as the Missouri minimum-wage statute, raising two questions of first impression, the district court's denial of defendant's motion to compel arbitration is affirmed where: 1) when a federal district court is confronted with a motion to compel arbitration under the Federal Arbitration Act (FAA), 9 U.S.C. sections 1-16, in a case where the parties have delegated questions of arbitrability to the arbitrator, the court must first determine whether the FAA applies before compelling arbitration under the FAA; and 2) a provision of the FAA that exempts contracts of employment of transportation workers from the FAA's coverage, the section 1 exemption, applies to a transportation-worker agreement that establishes or purports to establish an independent-contractor relationship

In a putative class action brought by truck drivers against their employer, raising a variety of statutory and common law labor claims, the district court's interlocutory order dismissing most but not all of plaintiffs' claims is affirmed where the court's rules and precedent require that plaintiff's right to appeal is deemed waived.

(First Circuit) In an application filed by the National Labor Relations Board for enforcement of its bargaining order against defendant, arising out of a union's unfair labor practice charge with the NLRB, claiming that defendant's refusal to bargain violated Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act, the application is granted where: 1) there was no error in the Board's adherence to UGL's successor bar doctrine; and thus 2) the Court does not reach defendant's arguments that it would prevail if that doctrine were rejected in favor of a rebuttable presumption of majority support for the union.

In a dispute between a Maine dairy company and its delivery drivers concerning the scope of an exemption from Maine's overtime law, 26 M.R.S.A. section 664(3), the district court's grant of summary judgment to defendant is reversed where: 1) the exemption's scope is not clear; and 2) because, under Maine law, ambiguities in the state's wage and hour laws must be construed liberally in order to accomplish their remedial purpose, the court adopts the drivers' narrower reading of the exemption.

In a plaintiff's claim for long term disability benefits from his employer, the district court's grant of summary judgment in favor of defendant is reversed where, because the plan contained no clear delegation of authority to defendant's denial of the claim, defendant's decision was not entitled to deference by the district court.

In a challenge to the Army's imposition of a six day furlough in July and August of 2013 in response to sequestration legislation, the Merit Systems Protection Board sustaining the Army's action is affirmed where there is no reversible error in the Board's rulings that the furlough of plaintiff was in accordance with law and implemented without procedural error or due process violation.

In a suit alleging that plaintiff's former employer, the United States Postal Service (USPS) terminated him in retaliation for taking FMLA leave, bringing interference and retaliation claims under 29 U.S.C. section 2615(a), the district court's judgment in favor of defendants is affirmed where the USPS decisionmaker did not have the requisite knowledge of the designation of plaintiff's medical leave necessary to hold defendants liable under the FMLA.

In a labor dispute involving nurses seeking to join a union and engage in collective bargaining with their employer and an employer's refusal to follow the NLRB's order to do so, the employer's petition for review of the NLRB's order denied where substantial evidence supports its finding that the nurses are not supervisors because their duties do not require the exercise of independent judgment.

In a suit brought by former employees of motel corporation-defendant, alleging that defendant fired them in violation of the Maine Whistleblowers' Protection Act (MWPA) and the Maine Human Rights Act (MHRA), the District Court's grant of summary judgment to defendant, relying on a purported 'job duties exception' to both statutes, is reversed where this Court's intervening decision in Harrison v. Granite Bay Care, Inc., 811 F.3d 36 (1st Cir. 2016), made clear that no 'job duties exception' exists under either the MWPA or, by implication, the MHRA.

In a suit alleging sex discrimination claims under federal and Puerto Rico law against plaintiff's former employer, the District Court's denial of plaintiff's motion to vacate summary judgement to defendants on her federal claims and dismissal of state claims, and grant of attorney's fees are affirmed where plaintiff has failed to show that the district court abused its discretion in holding her to the local rules' ordinary page limits, in awarding attorneys' fees to the prevailing defendants, or in rejecting her motions to set aside the summary judgment order and the fees award.

In another appeal in a protracted employment dispute between two former colleagues in which plaintiff sought payment of his promised wages and loan money, the District Court's decision to use Federal Rule of Civil Procedure 25(c) to hold defendant and related entities liable for the judgment originally entered against defendant's company only is affirmed where the District Court did not plainly err in joining related entities as alter egos of defendant's company and holding them liable for the judgment entered in favor of plaintiff.

In a remedies action, challenging the district court's jury instruction on the standard for awarding punitive damages in a case brought under the whistle blower provisions of the Federal Railroad Safety Act, 49 U.S.C. section 20109, the judgment below is affirmed where the court correctly adopted the punitive damages standard from Smith v. Wade, 461 U.S. 40 (1983).

In a case under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. sections 1001-1461, challenging the dismissal of the suit as time-barred, the district court's judgment is reversed where: 1) ERISA requires a plan administrator in its denial of benefits letter to inform a claimant of not only his right to bring a civil action, but also the plan-imposed time limit for doing so; and 2) because defendant violated this regulatory obligation, the limitations period in this case was rendered inapplicable, and plaintiff's suit was therefore timely filed.

In a suit brought by a former employee who was pregnant and sought a reasonable accommodation by employer defendant, claiming violations of the federal Americans with Disabilities Act and the New Hampshire Civil Rights Act, the district court's grant of summary judgment to employer defendant is affirmed where: 1) plaintiff failed to create a trialworthy issue as to whether she could have performed an essential function of her job, manually lifting up to 60 pounds, with or without a reasonable accommodation; and 2) her state law claims are without merit.

In an action brought by structural steel contractors against a local union alleging antitrust law violations under the Sherman Act, labor law violations under the Labor Management Relations Act (LMRA), and other violations under state law, the district court's final judgment in this complex, long-running dispute is affirmed where it properly: 1) upheld the jury verdict and award of damages for plaintiffs; and 2) granted summary judgment for the union defendant on the antitrust claims.

In an action brought by a former employee of defendant, challenging his compensation arrangement under the Fair Labor Standards Act (FLSA), 29 U.S.C. sections 201-219, and the Massachusetts Minimum Fair Wage Law, Mass. Gen. Laws ch. 151, sections 1-22, the district court's dismissal of the complaint is affirmed where a compensation structure employing a fixed salary does comply with section 778.114 when it includes additional, variable performance-based commission.

In an employment suit brought by a former employee of Puerto Rico's Vocational Rehabilitation Administration (VRA), an agency tasked with integrating persons with disabilities into the workforce, alleging the VRA had discriminated against her because of her disability, age, and politics, in violation of state and federal law, the district court's unexplained dismissal of her claims is: 1) reversed in part as to dismissal of both plaintiff's ADA claim and her local-law claims; but 2) affirmed in all other respects.

In a suit alleging illegal firing in violation of Maine's Whistleblower Protection Act, Me. Rev. Stat. tit. 26 section 833, the district court's summary judgment in favor of employer-defendant is vacated and remanded where the district court erred in not fully analyzing the validity of plaintiff's claims under Winslow v. Aroostook County, 736 F.3d 23 (1st Cir. 2013).

In a suit alleging that the City and plaintiff's supervisors discriminated against plaintiff on the basis of his race and retaliated against him by terminating his employment, dismissal of the claim is: 1) affirmed in part as to dismissal of the Section 1983 claim where plaintiff failed to plead facts sufficient to support the claim; but 2) reversed in part as to dismissal of the Section 1981 claim where the district court erred by imposing an administrative exhaustion requirement where none exists.

In a suit brought by former managers of Dunkin' Donuts claiming they were improperly denied overtime pay in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. section 207(a)(1), the district court's rejection of the magistrate judge's recommendation and grant of summary judgment to the defendant employees is vacated and remanded for further proceedings where material factual disputes remain concerning the exemption's applicability to plaintiffs.

In a Title VII lawsuit brought by former employees of a now-closed Puerto Rico call center run by the Federal Emergency Management Agency (FEMA), alleging that FEMA's actions in implementing a rotational staffing plan at the center and in eventually closing the facility discriminated against them on the basis of their Puerto Rican national origin and constituted unlawful retaliation for protected conduct, the district court's grant of summary judgment to defendants is affirmed where: 1) plaintiffs' disparate impact claims fail because a) the challenged actions were job-related and consistent with business necessity, and b) plaintiffs have not shown that there were alternatives available to FEMA that would have had less disparate impact and served FEMA's legitimate needs; and 2) both retaliation claims fail because plaintiffs have not shown that the allegedly adverse employment actions were causally related to any protected conduct.

In a suit alleging that plaintiff's former employer wrongfully terminated her on the basis of her age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. sections 621-634, the district court's grant of summary judgment in favor of the employer is affirmed where, after de novo review, plaintiff failed to establish the fourth prima facie element.

In an appeal by the NLRB seeking enforcement of an order that requires an electric and gas company to bargain with a union that seventeen of the company's dispatch-center workers voted to join, and a cross-petition for review of the Board's decision by the company, the Board's petition to enforce is granted and cross-petition denied where substantial evidence supports the Board's finding that the company failed to show that the workers at issue are either "supervisors" or "managers," rather than employees, even though the workers are highly skilled and charged with critical tasks.

In an employment dispute brought by an employee alleging violations of the Age Discrimination in Employment Act, 29 U.S.C. section 621, and various Puerto Rico statutes, the district court's dismissal of the dispute on the basis of a valid forum selection clause and simultaneous issuance of a declaratory judgment stating that the Seventh Amendment requires Puerto Rico to provide civil litigants with a jury trial, is vacated as to the declaratory judgment where it was in contravention of binding Supreme Court precedent.

In an suit brought by a former employee against his former employer and two individual supervisors, alleging unlawful targeting due to disability and union activities in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. sections 12101 - 12213; Title VII of the Civil Rights Act of 1964, 42 U.S.C. sections 2000e - 2000e-17, 42 U.S.C. section 1983, and several Puerto Rico laws, the district court's dismissal is affirmed where the settlement negotiations produced a binding oral settlement agreement that the District Court had jurisdiction to enforce.

In a Title VII suit by employees of the now-closed Puerto Rico National Processing Service Center (PR-NPSA) run by Federal Emergency Management Agency (FEMA), alleging that FEMA's actions in implementing a rotational staffing plan at the PR-NPSC and in eventually closing the facility discriminated against them on the basis of their Puerto Rican national origin and constituted unlawful retaliation for protected conduct, the district court's grant of summary judgment to defendants is affirmed where defendants had legitimate, nondiscriminatory reasons for their actions and, with respect to the rotational staffing plan retaliation claim, that plaintiffs had not shown a causal link between their protected conduct and the purported retaliation.

In a suit claiming that, as a result of his membership in the Popular Democratic Party, plaintiff was subject to impermissible political discrimination after the New Progressive Party came to power in Puerto Rico in January 2009, the district court's grant of summary judgment for defendants is affirmed where: 1) plaintiff has not raised a genuine issue of material fact that his party affiliation was a factor in his reassignment or that his job responsibilities were diminished; and 2) plaintiff's remaining allegations of workplace discrimination are insufficient to constitute adverse employment actions.

In a suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e, alleging retaliation against plaintiff by Wyndham Vacation Resorts, Inc. for making informal and formal complaints against her then-supervisor after he subjected her to a hostile work environment on the basis of her race and national origin, the district court's grant of summary judgment to defendant is affirmed where plaintiff has not presented sufficient evidence to establish a retaliation claim under Title VII.

Plaintiff was a life insurance agent with defendant insurance company for more than forty years before his termination, and he now contends that he was an "employee" and that in firing him, defendant engaged in age discrimination in violation of both state and federal law. Summary judgment in favor of defendant on all claims is affirmed, where: 1) plaintiff's state law age discrimination claims were time-barred; 2) no reasonable jury could conclude that defendant engaged in age discrimination under federal law in terminating plaintiff's agent contract; and 3) no reasonable jury could conclude that the termination breached plaintiff's contract with defendant or violated any of his common law rights.

Plaintiffs, current and former employees of defendant Puerto Rico State Insurance Fund Corporation (SIFC), allege that SIFC and its high level administrators selectively enforced Puerto Rico's merit principle against them in violation of the Equal Protection Clause. Summary judgment in favor of defendants is affirmed, where plaintiffs failed to identify similarly situated individuals treated differently by defendants.

This interlocutory appeal concerns a preliminary injunction, granted on due process grounds, that inter alia, reinstated plaintiff Montanez-Allman and vacated the political appointment of his replacement following the legislature's enactment of Law 75-2013 which abolished four positions, including Montanez-Allman's. When this extraordinary relief issued, the Puerto Rico Supreme Court had not yet issued its opinion in the nearly identical case of Diaz-Carrasquillo v. Garcia-Padilla, which confirmed the availability of relief in Commonwealth court. This case is remanded to the district court with instructions to vacate the preliminary injunction in light of the extraordinariness of the relief sought, the importance of this case to the Commonwealth's own constitutional balance of powers, and the relief now available under Diaz-Carrasquillo, which both parties agree is adequate.

In this employment discrimination action, plaintiff-employee died and petitioner-appellants moved to substitute themselves as plaintiffs. The judgment of the district court ruling that plaintiff's employment discrimination claims against defendant were not inheritable and dismissing the case for failure to state a claim is vacated, where causes of action employment discrimination and employment disability discrimination are inheritable under Puerto Rico law.

In this case, an arbitration panel awarded appellant Fenyk $600,000 in back pay based on a claim that he was unlawfully terminated from his job because he is an alcoholic. The district court vacated the award, concluding that the arbitrators lacked authority to grant that remedy because Fenyk brought no claims under the state law the arbitrators applied. Fennel now seeks reinstatement of the award. The district court's judgment is reversed, where: 1) this court's limited review of arbitral decisions requires it to uphold an award, regardless of its legal or factual correctness, if it draws its essence from the contract that underlies the arbitration proceeding, as it does here; and 2) although the arbitration decision may have been incorrect as a matter of law, it was not beyond the scope of the panel's authority.

In this case, plaintiff filed a civil action pursuant to Title VII's anti-retaliation provision (24 U.S.C. section 2000e-3(a)) against defendant Department of Veterans Affairs, her former employer. The district court ruled that plaintiff's Title VII retaliation claims were time-barred and entered partial summary judgment in favor of defendant. The judgment is affirmed, where, since both employment actions challenged by plaintiff constitute discrete acts, the continuing violation doctrine does not apply to plaintiff's claims, and thus her claims are time-barred.

In this employment discrimination case, plaintiff alleges that he was fired because of his age and in retaliation for his efforts to assert his rights against this alleged discrimination. Summary judgment for the defendants is reversed, where: 1) plaintiff has put forth a sufficient prima facie case of age discrimination to survive summary judgment; 2) a rational jury could reasonably infer that, based on the evidence, defendants fired plaintiff due to his age and not some other nondiscriminatory pretext; 3) plaintiff has shown inconsistencies in defendants' case sufficient to support an inference of pretext; and 4) a rational jury could find for plaintiff on his retaliation claim.

In this employment action, plaintiff-workers were fired a few months after a newly elected governor took over the Puerto Rico executive mansion. Plaintiffs allege that they were terminated solely because they affiliated with rival political parties, which amounts to political discrimination prohibited by the First Amendment. Summary judgment disposal of plaintiffs' political discrimination claim is affirmed, where: 1) there is no evidence that defendants had knowledge of plaintiffs' particular political affiliations; and 2) plaintiffs do not offer any generalized statistical evidence showing how many employees affiliated with the governor's party were retained after the layoffs as compared to non-party employees, whether terminated plaintiffs were replaced by party-affiliated employees, or other relevant statistical evidence.

In this action for unpaid overtime wages brought by plaintiff-employees, judgment in favor of defendants is affirmed, where: 1) plaintiffs were paid on a salary basis and received more than $100,000 per year for continuously performing the duties of a professional employee; and 2) plaintiffs were therefore "highly compensated employees" exempt from the overtime protections of the Fair Labor Standards Act (29 C.F.R. section 541.601).

Dismissal of plaintiff's retaliation suit against defendant-union is affirmed, where: 1) count 1's Labor-Management Relations Act discrimination claim basically mimics the discrimination allegations in count 3's unfair-representation claim, and must be co-considered to the extent that the two counts sync up; 2) on count 2's Labor-Management Reporting and Disclosure Act claim, plaintiff alleges no facts plausibly suggesting action by the union as an entity, nor that the actions resulted from an established disciplinary process; and 3) the solicitation system does not arbitrarily discriminate, as it is open to every member and can be used exclusively or along with the seniority system, and thus plaintiff's unfair-representation claim falls short of the plausibility standard. - See more at: http://caselaw.findlaw.com/summary/opinion/us-1st-circuit/2014/10/24/271908.html#sthash.i2iGnMsq.dpuf

In this employment discrimination suit, summary judgment in favor of defendant-employer is affirmed, where: 1) plaintiff-employee did not present a Federal Torts Claims Act claim in his administrative complaint; and 2) all other claims were time-barred. - See more at: http://caselaw.findlaw.com/summary/opinion/us-1st-circuit/2014/10/06/271687.html#sthash.pQi6bSFl.dpuf

In this federal minimum wage case, the Secretary of Labor charges that a restaurant took advantage of the reduced minimum wage exception without complying with the requirements. Summary judgment in the Secretary's favor against the restaurant and individual defendants is affirmed, where: 1) waiters had not received proper notice of the restaurant's intent to credit their tips against the minimum wage; 2) deductions taken from waiters' pay are invalid for Fair Labor Standards Act purposes; and 3) defendants admitted a string of material facts strongly suggestive of individual liability. - See more at: http://caselaw.findlaw.com/summary/opinion/us-1st-circuit/2014/10/01/271657.html#sthash.ha8kBTAd.dpuf

In this suit alleging that political discrimination in violation of the First Amendment led to adverse employment actions against plaintiffs, dismissal of the First Amendment and various derivative claims is vacated and remanded for further proceedings, where plaintiffs stated plausible First Amendment claims against the defendants who received their cease and desist letters. - See more at: http://caselaw.findlaw.com/summary/opinion/us-1st-circuit/2014/09/17/271518.html#sthash.9RJcUwEk.dpuf

In this sales commission dispute between plaintiff-employee, a resident of Maine, and defendant-employer, a California-based company, the district court's decision to apply California law, instead of choosing to apply the Maine wage payment law, is vacated and remanded where: 1) despite the choice-of-law provision in the written agreement calling for application of California law in certain disputes, determination of the correct choice of law here is not straightforward; and 2) Maine's highest court would most likely deem plaintiff entitled to the fully array of remedies set forth in Maine's wage payment law. Additional Information at http://caselaw.findlaw.com/summary/opinion/us-1st-circuit/2014/08/20/271168.html#sthash.bljuzJzM.dpuf

Summary judgment for defendant in an employment discrimination action in which plaintiff claims that he was passed over for the position of Deportation Officer in the U.S. Department of Homeland Security on account of his religion, race, and national origin, is vacated and remanded, where plaintiff presented sufficient evidence for a jury to find that he was a victim of discrimination.

Judgment for plaintiff in a suit alleging adverse employment action and a failure to hire on account of sex is affirmed, where: 1) defendant-employer failed to renew its motion for judgment as a matter of law post-verdict, which bars its sufficiency-of-the-evidence claim from review; and 2) with regard to the damages award, the district court did not abuse its discretion in denying defendant's request for remittitur.

Dismissal of an action asserting local law claims for damages arising out of defendant-health insurer's refusal to cover plaintiff's lap band medical procedure is reversed and remanded, where: 1) the Federal Employees Health Benefits Act of 1959 (FEHBA) does not completely preempt local-law tort and contract claims arising out of a refusal by an FEHBA insurer to cover a medical procedure; and thus, 2) the removal of this case to federal court cannot be justified on the basis of complete preemption.

Summary judgment in favor of defendants in an action challenging the Boston Police Department's drug testing program, which plaintiffs allege caused a disparate impact on the basis of race in violation of Title VII of the Civil Rights Act of 1964 is: 1) vacated in part with respect to the plaintiffs' Title VII claim; 2) reversed with regard to the district court's denial of plaintiffs' motion for partial summary judgment on that claim, where there is no genuine issue of material fact that could preclude plaintiffs from making a threshold, prima facie showing of disparate impact; but 3) otherwise affirmed.

Following judgment in favor of plaintiff- employee benefit plan in an action to recover unpaid employee-related remittances allegedly due under a collective bargaining agreement (CBA), the district court's award of attorneys' fees to plaintiff pursuant to the CBA and ERISA's fee-shifting provision is affirmed, where: 1) the use of proportionality as a factor, but not the exclusive factor, in setting the amount of the fee award was within the court's discretion; and 2) the district court did not abuse its discretion in setting the fee award or the amount of expenses.

Dismissal of plaintiff's action alleging that during her transitory employment, defendant subjected her to various forms of abuse in retaliation for her earlier suit, which had alleged that defendant refused to hire her as a firefighter because of her gender, is vacated and remanded, where: 1) plaintiff adequately alleges that she opposed a practice made unlawful by Title VII of the Civil Rights Act; and 2) plaintiff adequately alleges employment actions sufficiently adverse to constitute retaliation.

Summary judgment for defendant-employer on plaintiff's claims that defendant fired him in retaliation for pursuing his lawsuit against defendant under the Fair Labor Standards Act (FLSA) is vacated and remanded, where there remains a genuine dispute as to whether the people who decided to fire plaintiff acted with awareness of the CEO's desire to retaliate and, if so, whether plaintiff would have been fired anyway for reasons other than pursuit of his rights under the FLSA.

Summary judgment for plaintiffs, a group of now-retired union employees, in a dispute over certain "banked hour" benefits which defendant-union Pension Trust wants to eliminate, is affirmed, where: 1) plaintiffs' benefits are in fact "accrued;" and 2) defendant-trust's proposed elimination would violate the anti-cutback provisions of the Employee Retirement Income Security Act of 1974 (ERISA), which prohibits the decrease by amendment of any accrued benefit of a participant in an ERISA plan.

The district court did not err in affirming an arbitral award entered in favor of defendant-union arising out of its claims that plaintiff-employer allegedly wrongfully transferred work to non-union workers, where: 1) the arbitral panel did not exceed the bounds of its interpretative powers or clearly err in its conclusion that the subcontracting jobs to which union employees had a "legitimate claim" constituted a "transfer" within the meaning of the collective bargaining agreement; and 2) the district court did not abuse its discretion in denying defendant fees and costs.

Judgment awarding plaintiff-Funds fringe benefit contributions that defendant failed to make for work performed by members of the union is affirmed, where: 1) there was no error in the district court's refusal to enforce the purported June 7 settlement agreement; 2) the district court's evidentiary rulings do not warrant vacating the judgment; 3) the district court did not err in denying defendant's motion for Rule 11 sanctions; and 4) the district court did not err in awarding plaintiffs interest and attorneys' fees.

The district court's preliminary injunction that restrained defendant, a former employee of plaintiff, from doing business with certain customers to whom he had sold products and services while in plaintiff's employ, is affirmed, where: 1) the identity of the party making initial contact is just one factor among many that the trial court should consider in drawing the line between solicitation and acceptance; 2) the evidence of record is adequate to underpin the lower court's determinations that defendant violated the non-solicitation covenant and that plaintiff is therefore likely to succeed on the merits; and 3) the district court narrowly tailored the preliminary injunction with respect to non-disclosure, enjoining only the use of information contained in defendant's notes.

In an action alleging violations of the Age Discrimination in Employment Act, the district court\'s denial of plaintiff\'s requested relief for time to respond to defendant\'s summary judgment motion and a discovery extension is affirmed where: 1) the district court had good reason to believe that the plaintiff\'s plight was the result of her lackadaisical approach to discovery; and 2) the plaintiff\'s lack of diligence in pursuing discovery was, on the facts of this case, a sufficient reason for the district court, in its discretion, to deny relief under Fed. Rule Civ. P. 56(d).

In a wage and hour action alleging that defendants deprived plaintiff-employees of their wages through the use of timekeeping policies and employment practices that required them to work through their meal and rest periods, put in extra work time before and after their regularly scheduled work shifts, and attend mandatory training sessions, the district court's dismissal of the action is: 1) vacated in part, as to the dismissal of the Fair Labor Standards Act (FLSA) claims against defendant hospital and defendant Ullian, as well as the Massachusetts common law claims for breach of contract, promissory estoppel, money had and received, unjust enrichment, and conversion; 2) vacated in part, as to the striking of plaintiffs' class and collective allegations; 3) affirmed in part, as to the district court's directive that the plaintiffs in the two cases file a single consolidated complaint and, by extension, the district court's assumption of jurisdiction over the state law claims; and 4) affirmed in part, as to the dismissal of the FLSA claims against defendant Canavan, the fraud and negligent misrepresentation claims, and the denial of further leave to amend the complaint.

The district court's order dismissing plaintiff's federal court action against the defendant state department of labor and defendant claimant union members, who claimed unemployment benefits following a large-scale work stoppage at plaintiff's facility, is affirmed, but on the singular ground that dismissal is warranted under the Younger abstention doctrine.

Dismissal of plaintiff's 1983 action alleging defendant-town deprived plaintiff of a constitutionally protected property interest in his right to be recalled to employment without due process of law is vacated and remanded, where: 1) the district court was correct that plaintiff's complaint alleged a protected property interest in his recall right; 2) plaintiff's uncontested allegation that he received no notice either before or after the defendant-town deprived him of a protected property interest in employment is in itself sufficient to state a procedural due process claim under section 1983; and 3) the district court erred in its conclusion that plaintiff's potential recourse to state law foreclosed his section 1983 claim

Summary judgment for defendants on plaintiff's claims that he received insufficient procedural due process in violation of the Fourteenth Amendment in relation to the termination of his employment, and that defendants violated the Rhode Island Constitution and Whistleblowers' Protection Act when it fired him, is affirmed, where: 1) the procedural due process given to plaintiff, which included a pre-deprivation hearing and a post-termination arbitration proceeding, satisfied plaintiff's rights to procedural due process; 2) the district court acted within its discretion in reaching and resolving plaintiff's state law claims; and 3) the district court did not err in resolving the state law claims in defendants' favor.

Summary judgment for defendant in suit alleging gender and national origin discrimination when plaintiff was denied a tenure-track position is affirmed, where: 1) the Ph.D. requirement for tenure-track positions was a legitimate, nondiscriminatory reason for defendant's actions; and 2) plaintiff did not meet her burden of showing that the articulated reason was pretextual.

Summary judgment in favor of defendant United States in Federal Tort Claims Act (FTCA) action arising out of plaintiff's termination from the U.S. Post Office, is affirmed, where: 1) the district court correctly concluded that the Postal Service Board of Contract Appeals' (PSBCA) findings precluded re-litigation of the factual issues in plaintiff's FTCA suit; and 2) applying the uncontested facts, summary judgment was properly granted as to plaintiff's FTCA claims for negligent supervision, malicious prosecution, and invasion of privacy by postal inspectors

Summary judgment for defendant is vacated and remanded with instructions to dismiss the matter for lack of subject matter jurisdiction, where: 1) former employee-plaintiffs' failures to comply with the FDIC administrative claims process trigger the statutory bar to their claims for severance; 2) plaintiffs who filed an administrative claim but did not seek timely judicial review are barred; and 3) plaintiffs may not avoid the jurisdictional bar by failing to name the FDIC as a defendant.

District court did not abuse its discretion in denying plaintiff's request to amend her discrimination complaint against defendant Puerto Rico State Department and others, where plaintiff failed to diligently and properly move to amend her complaint

Dismissal of complaint alleging political discrimination and due process violations when plaintiffs were demoted or dismissed because their positions were obtained through internal hiring calls rather than through a competitive process open to the public, is reversed, where: 1) the district court erred in abstaining based on Younger, and dismissal was not the remedy in any event; however, 2) the proceedings are stayed pending the outcome of the Puerto Rico Supreme Court's decision in a related litigation involving the same issue of legality of appointments, based on the Pullman abstention doctrine and the principles of federalism, comity, and sound judicial administration

Summary judgment for defendant on plaintiff's retaliation claims under the Americans with Disabilities Act is vacated and remanded, where plaintiff has presented sufficient evidence to bring to a jury on the issue of whether defendant's stated reason for her termination was a pretext for retaliatory animus; specifically, a reasonable factfinder could conclude that plaintiff's refusal to obey an instruction from her supervisor served as a convenient pretext for eliminating an employee who had engaged in ADA-protected conduct.

Convictions for violating and conspiring to violate the federal wire-fraud statute are affirmed, where: 1) a fact finder could rationally find the use of interstate wires here, where the electronic transfer of funds involved several states; and 2) there was sufficient evidence for a sensible fact finder to find that defendant and defendant-employer he worked for without telling insurance company paying him disability benefits, agreed on the essential nature of a wire-fraud conspiracy and this agreement is enough to form the essential nature of the plan, even if defendant-employer did not know whether the misrepresentations would be used to defraud an insurance company, the IRS, or someone else.

Summary judgment for defendants is: 1) affirmed on the retaliation claim because plaintiff failed to make a prima facie case; 2) affirmed on the constructive discharge claim, where the transfer within the department and slight commuting inconveniences and costs, was not so intolerable that a reasonable person in plaintiff's place would feel forced to resign as opposed to stay on the job while seeking redress ; and 3) vacated and remanded on the Title VII sexual harassment and state law claims where a reasonable jury could conclude that plaintiff was subject to a hostile work environment, and plaintiff submitted sufficient evidence of a trial-worthy claim that defendant-supervisor used plaintiff's reaction to unwelcome harassment as a basis for decisions that affected the terms of her employment.

In claim against defendant-insurer and plan administrator for long term disability (LTD) benefits under an employee group benefit plan governed by ERISA, judgment awarding LTD benefits to plaintiff for maximum time period available under the plan is affirmed, where: 1) in an addiction context, a risk of relapse can be so significant as to constitute a current disability; 2) under the language of the plan, categorically excluding risk of relapse as a source of disability is simply unreasonable; and 3) the district court did not abuse its discretion in awarding retroactive benefits and plaintiff attorneys' fees.

Judgment of conviction and sentence for engaging in a scheme to conceal and avoid defendant's company's employment tax liability is affirmed, where: 1) defendant's counsel agreed to prosecution's submission of three summary charts to the jury so any claim of error is waived; 2) there is no clear error in the district court's adoption of the government's tax loss calculation; 3) it was "abundantly clear" from the record that defendant had reviewed the presentence report and its addenda with her attorney, and therefore there was no plain error in the district court's failure to ask if defendant and her attorney had read and discussed it.

In civil rights action against defendant-state officials by plaintiff whose position was terminated pursuant to a consent agreement between defendants and his employer following investigation into the company's sales practices, judgment dismissing complaint is affirmed, where: 1) the state officials carried their burden in establishing they are entitled to absolute immunity for entering into the consent agreements with plaintiff and his employer; 2) the district court did not abuse its discretion in refusing to invoke the doctrine of judicial estoppel; and 3) the 1985(2) claim was properly dismissed because it failed to allege any racial, or otherwise class-based, invidiously discriminatory animus underlying the state officials' actions.

In plaintiffs' suit against their franchisor alleging various claims, including breach of contract, deceptive and unfair business practices, and failure to pay wages, district court's determination that the plaintiffs did not have to arbitrate their claims because they did not have adequate notice of the arbitration clauses contained in the franchise agreements is reversed where: 1) Massachusetts law, which governs this dispute, does not impose any such special notice requirement upon the commercial contractual provisions; and 2) a special notice requirement would be preempted by the Federal Arbitration Act, which requires courts to place such arbitral agreements upon the same footing as other contracts.

Plaintiff's appeal of the district court's grant of summary judgment in favor of the defendant in her suit against her former employer for discrimination, retaliation, and hostile work environment under the Age Discrimination in Employment Act (ADEA), is dismissed where plaintiff's opening brief offers no specific record cites to support her version of the facts.

In employees' class action suit against Starbucks, claiming that its policy of allowing shift supervisors to share in the pooled gratuities violated the Tips Act, judgment of the district court is affirmed where: 1) the plain language of the Tips Act states unequivocally that only employees who possess "no managerial responsibility" may qualify as "wait staff"; and 2) remainder of parties' contentions are without merit.

In plaintiff's age discrimination and retaliation suit against his former employer, judgment of the district court is affirmed for the most part, but vacated where: 1) the $500,000 award for emotional distress damages is vastly out of proportion, even after remittitur; and 2) the district court must adjust its award of multiplied damages on remand.

In plaintiff's age discrimination suit against his former employer, district court's grant of summary judgment in favor of the employer is reversed and remanded where there is sufficient evidence from which a jury could conclude that the employer's reason for terminating the plaintiff was pretextual, and that the true reason for his termination was discriminatory based on his age.

In plaintiff's suit against his employer under both federal and state disability laws, district court's grant of summary judgment in favor of the employer is affirmed where: 1) plaintiff's own admission that because he had not passed the required exam, another employee was forced to perform certain of plaintiff's job, reinforces that obtaining the license was an essential function; 2) plaintiff did not satisfy his burden of showing facial reasonableness in his failure to accommodate claim; and 3) plaintiff's disparate treatment claim fails because he did not establish that he was qualified to perform the essential functions of his job with or without a reasonable accommodation.

District court's dismissal of plaintiff's suit against her employer, brought under Title I of the Americans with Disabilities Act, is affirmed where plaintiff's suit is untimely because she failed to exhaust her administrative remedies and file her Title I suit within 90 days after receiving the right-to-suit notice from the Equal Employment Opportunity Commission.

In a suit brought by a union-affiliated benefit funds against an employer for unpaid remittances covered by a collective bargaining agreement and attorney fees, the judgment of the district court is vacated and remanded where: 1) because no final judgment entered until the district court resolved the contract-based claim for attorneys' fees, the plaintiffs' appeal is timely as to all the issues raised; and 2) the presumption is that the defendant is liable for all hours worked in which employees were shown to have performed some covered work, and until and unless the employer can offer evidence to overcome the presumption, the presumption controls.

In plaintiffs' civil rights action against a municipality and various defendants, claiming defendants engaged in unlawful political discrimination in violation of the U.S. Constitution and the laws and Constitution of the Commonwealth of Puerto Rico, district court's award of almost $60,000 in attorney fees against the plaintiffs is reversed and remanded, where plaintiffs' lawsuit was not so frivolous or unreasonable as to justify an award of fees to the defendants.

In an employee's suit against Walgreens for wrongful termination following a two-week absence from his job due to a medical condition, district court's judgment is affirmed where: 1) Walgreens was not entitled to judgment as a matter of law as there was sufficient evidence to permit the jury to conclude that Walgreens' explanations of its reasons for firing plaintiff were pretextual; 2) it did not err in its calculation of the amount of backpay due to plaintiff; and 3) it did not commit clear error in denying plaintiff's request for liquidated damages under the FMLA. With regard to the district court's rejection of the plaintiff's spouse's claim under Puerto Rico's Article 1802 for emotional distress, an issue is certified to the Puerto Rico Supreme Court for clarification.

In plaintiff's suit against his employer claiming race-based disparate treatment and hostile work environment in violation of Title VII, 42 U.S.C. section 2000e, district court's grant of summary judgment in favor of the employer is affirmed where: 1) plaintiff's disparate treatment claim founders at the third stage of McDonnell Douglas, as the employer's reasons for disciplining plaintiff, on the record, does not allow inferences of pretext or discrimination; and 2) plaintiff has not proffered sufficient evidence to show that his employer knew or should have known about the alleged harassment by other co-workers and failed to take prompt and appropriate remedial action.

A petition for review of the order by the National Labor Relations Board (Board) and the Board's application for enforcement of its order is granted as the NLRB erred in finding that the parties' agreement violated section 8(e) of the Act with respect to one of the subcontractors, as the record indicates that the agreement was intended to preserve union jobs, a lawful purpose under the Act.

In a Marine veteran's adverse employment suit under section 501 of the Rehabilitation Act, which requires federal employers to adopt affirmative action programs for disabled veterans and prohibits discrimination against them, district court's judgment in favor of the defendant is affirmed, as the Act does not entitle plaintiff to relief when retaliation for his complaints about disability discrimination is a motivating factor in, but not the but-for cause of, an adverse employment action.

In plaintiff's personal injury suit against the lessor of his employer, for back injuries sustained after stepping into a hole in a shed on lessor's property, district court's grant of summary judgment in favor of the defendant is affirmed, as under Humphrey v. Byron, a lessor of commercial property has no obligation to make repairs to that property unless he or she contracts to do so, and here, the lease did not obligate defendant to maintain or repair the tire shed.

In plaintiff's suit for retaliation against his former employer, the United States Postal Service (USPS), district court's grant of summary judgment in favor of the USPS is affirmed because plaintiff has not proffered evidence sufficient to establish a prima facie claim of retaliation.

In plaintiff's suit against a company alleging that she was denied employment because of her gender and pregnancy at the time of her application, district court's denial of the company's motion to compel arbitration pursuant to an arbitration clause in plaintiff's job application is affirmed, not on the issue of the validity of the agreement as the district court held, but based on the ambiguity concerning the scope of the arbitration clause. Thus, the court found that, because of the obligation under Maine law to construe ambiguities against the drafter of a contract, plaintiff is not required to arbitrate her claims.

In an employment discrimination suit, involving alleged violations of Title VII of the Civil Rights Act of 1964 and the Family and Medical Leave Act (FMLA), e judgment is affirmed where the district court: 1) did not err in granting the Rule 50 motion to defendant employer; 2) did not abuse its discretion in granting a new trial under Rule 59; and 3) did not abuse its discretion in excluding certain evidence as prejudicial or confusing under Rule 403.

In plaintiff's suit against her former employer, claiming retaliation in violation of the Family and Medical Leave Act (FMLA), and disability discrimination in violation of Massachusetts law, the magistrate judge's award of summary judgment in favor of the defendant is affirmed as, plaintiff's claims arise from the defendant's decision to terminate employment after plaintiff had exhausted 12 weeks of medical leave.

In a suit by a former trust employee of the Metropolitan Bus Authority of Puerto Rico (MBA), against various public officials under 42 U.S.C. section 1983, alleging that a decision not to install him in a career attorney position in the MBA was politically motivated and was effected without due process of law, in violation of his First and Fourteenth Amendment rights, the District Court's grant of defendants' motion to dismiss all claims is: 1) affirmed as to dismissal of the due process claim as to all defendants, and as well, dismissal of the First Amendment claim as to all defendants, save for defendant Delgado; and 2) vacated as to the First Amendment claim against Delgado, where the complaint adequately alleges his involvement in the reinstatement decision.

In a suit under 42 U.S.C. section 1983 against an assisted living facilities licensed by the Maine Department of Health and Human Services (DHHS), alleging plaintiff's termination without a hearing infringed her procedural due process rights, and a number of state law claims, the District Court's dismissal of plaintiff's due process claims and state law claims are affirmed where: 1) the living facility operator was a non-state actor and thus could not be held accountable under section 1983; and 2) the complaint failed to allege a constitutional violation by the DHHS employees

In a suit by a terminated employee of the Puerto Rico Ports Authority, alleging political discrimination and local-law claims after the New Progressive Party won the election and plaintiff began experiencing workplace harassment, dismissal is reversed where plaintiff's second amended complaint sets forth sufficient factual content to make out a plausible claim for relief.

In a suit alleging an unlawful retaliatory firing, in which the defendant moved to compel arbitration based on employment agreements containing an arbitration clause, the case is remanded to the district court with instructions to enter an order compelling arbitration, where resolution of the question whether the limitations period for two of the appellant's claims could be validly shortened by an arms-length agreement between employer and employee was for the arbitrator, not the court.

In consolidated negligence actions under the Federal Employers' Liability Act (FELA) against two railroad defendants brought by a former employee, the district court's judgment in favor of the defendants is affirmed, where: 1) no fact-finder could reasonably have inferred that the plaintiff first became aware of a work connection with his knee pain and neck injury within the period of limitation; 2) there was no error in entering judgment as a matter of law on negligence claims based on inadequate tools and failure to obtain ergonomic studies of the activities required to perform the plaintiff's various jobs; and 3) it was not reversible error to admit collateral source evidence that the plaintiff was receiving disability benefits under the Railroad Retirement Act.

In a case in which a former employee asserted claims of disability discrimination in violation of the Americans with Disabilities Act, unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964, and similar claims under state-law analogues, the district court's grant of summary judgment to the employer is affirmed, where: 1) the disability discrimination claims failed because no reasonable jury could find that the plaintiff was able to perform the essential functions of her job even with reasonable accommodations; and 2) the plaintiff did not meet her burden of showing that a reasonable factfinder could conclude that the employer acted because of retaliatory motives instead of the legitimate reasons it asserted.

In lawsuits seeking to represent a potential class of hospital employees who had allegedly been deprived of compensation for certain aspects of their work: 1) the district court's dismissal of one suit is affirmed, where a) removal to federal court and dismissal of all but one claim were proper under the complete preemption doctrine and the exercise of supplemental jurisdiction, because it was necessary for an arbitrator to interpret a collective bargaining agreement to resolve certain claims, and b) a claim under the Massachusetts Fair Minimum Wage Act was barred because the plaintiffs worked in a hospital; and 2) the district court's dismissal of the other suit is vacated and the case remanded for an opportunity to amend the complaint to more specifically identify the employer being sued.

In a putative class action asserting violation of the Fair Labor Standards Act (FLSA) by hospitals and health care providers, the district court's judgment is affirmed so far as it found the complaint inadequate to state an FLSA claim, but the dismissal with prejudice is vacated, and the case remanded to give the plaintiffs a final opportunity to file a sufficient complaint, where: 1) some of the information needed may have been in the control of the defendants; 2) the claim looked plausible based on what was known; and 3) the plaintiffs' counsel were genuinely uncertain about the specificity the district court wanted.

In a Title VII suit against a university and university officials for gender-based employment discrimination, the district court's grant of the defendants' motion to dismiss for failure to state a claim is affirmed, where: 1) the allegation that she was held to a different standard because she was a woman did not follow from any factual content set out in the pleading or any reasonable inference therefrom; and 2) the complaint alleged no facts that would support an inference that the university acted on the basis of gender.

In a suit under 42 USC section 1983 alleging that the defendants violated the plaintiff's First and Fourteenth Amendment rights by taking adverse employment actions against him based on political animus and by depriving him of a property interest in the functions of his job without due process, the district court's order of dismissal for failure to state a claim is affirmed, where: 1) the plaintiff did not plausibly allege that his participation in constitutionally protected activities caused curtailment of job functions and perquisites, assuming that such even constituted adverse employment action; and 2) there was no allegation of deprivation of a constitutionally protected property interest as required for the procedural due process claim.

In a suit raising a disability-based hostile work environment claim under the Rehabilitation Act, the district court's grant of summary judgment in favor of the employer is affirmed, where: 1) the plaintiff did not prove disability in that she failed to show that her impairment caused her to be substantially limited in any major life activity; and 2) the plaintiff failed to show that her employer regarded her as disabled.

In a suit against the plaintiff's employer alleging religious discrimination and retaliation under Title VII of the Civil Rights Act, the district court's grant of summary judgment for the employer is affirmed, where: 1) the efforts made by the employer constituted a reasonable accommodation of the plaintiff's religious beliefs; 2) the plaintiff failed to point to any evidence that the employer's reasons for disciplining him were merely a pretext for religious discrimination; and 3) the district court did not abuse its discretion in refusing the plaintiff's request for additional discovery to respond to the summary judgment motion, as the plaintiff failed to demonstrate why he could not have obtained the information he needed to contest the motion prior to the close of discovery.

In a suit for breach of an employment contract, the district court\'s dismissal of the complaint is reversed, where the district court exceeded its discretion in its application of the Colorado River factors to dismiss the case in deference to litigation pending in the Commonwealth of Puerto Rico, as that litigation did not display exceptional circumstances that would clearly justify departure from the federal court\'s obligation to exercise jurisdiction in a garden variety federal diversity case requiring only the application of settled principles of state law to an ordinary contract dispute.

In two separate but related cases under the whistleblower protection provision of the Sarbanes-Oxley Act of 2002, alleging unlawful retaliation by employers that are private companies that act under contract as advisers to and managers of mutual funds organized under the Investment Company Act of 1940, the district court's denial of motions to dismiss for failure to state a claim is reversed, as the whistleblower protection afforded by section 806(a) of the Act applies only to the employees of public companies as defined in the Act, and not to an employee of a contractor or subcontractor of a public company reporting suspected violations relating to fraud against shareholders of the public company. Read more...

In a retaliation case under the Age Discrimination in Employment Act of 1967 (ADEA) and Puerto Rico's general tort statute known as Article 1802, in which the jury found for the plaintiff, the district court's denial of the defendant's motion for judgment as a matter of law and motion for a new trial is affirmed, where: 1) the evidence presented at trial was enough to support the jury's finding of retaliation; 2) the appellants waived defenses based on the statute of limitations, the exclusive remedies bar, and a purportedly erroneous jury instruction; 3) the evidence was sufficient for a reasonable jury to find the requisite fault or negligence to sustain an Article 1802 claim; and 4) the awards of damages and attorney fees were proper. Read more...

In a suit under 42 USC section 1983 alleging an employer's sex discrimination and retaliation in violation of the Equal Protection Clause of the Fourteenth Amendment, the district court's grant of summary judgment is affirmed where: 1) allegations regarding events occurring prior to the one-year statute of limitations period were time-barred because the plaintiff did not demonstrate that he was subjected to a hostile work environment to which the continuing violation doctrine could apply; 2) the plaintiff's retaliatory transfer claim failed because there was no evidence of actual disparate treatment; and 3) the plaintiff's claim that he was transferred on the basis of his sexual orientation failed because there was no evidence that he was treated differently than others similarly situated.

In an appeal from an order of the district court dismissing plaintiffs' Fair Labor Standards Act complaint on sovereign immunity grounds and summary judgment, order is affirmed where: 1) a state waives its sovereign immunity to a pleaded claim by removing that claim to the federal court only if the removal confers an unfair advantage on the removing state; and 2) plaintiffs had received the full measure of benefits to which they were entitled under a collective bargaining agreement and state law.

In an appeal from a judgment of the district court in defendant\\\'s favor concerning a challenge to the constitutionality of an ordinance of requiring that, when there is a change in the identity of a hospitality employer, that employer must retain its predecessor\\\'s employees, subject to some conditions, for a three-month period, judgment is affirmed where the ordinance is not pre-empted under the National Labor Relations Act, nor does it violates the Equal Protection Clause and the Contract Clause.

In an appeal from a judgment of the district court dismissing plaintiff's Federal Tort Claims Act (FTCA) and Administrative Procedure Act (APA) complaint for wrongful termination, judgment is affirmed where there was no subject matter jurisdiction under the FTCA because the Government's limited waiver of sovereign immunity is not applicable to constitutional tort claims and because the APA does not apply to Nonappropriated Fund employees.

In an appeal from a judgment of the district court granting partial summary judgment to defendant-employers in plaintiff's complaint for unpaid overtime wages under the Fair Labor Standards Act (Act), judgment is affirmed where the court correctly applied governing legal principles in finding that plaintiffs' work involved sufficient discretion, such that they were administrative employees and thus exempted from overtime compensation under the Act.

In an appeal from an order of the district court dismissing plaintiffs' Section 1983 complaint alleging violations of their First Amendment right to be free of employment discrimination on the basis of political affiliation, judgment is affirmed because the choice of plaintiffs not to associate with politically-powerful members of the Boson Fire Department is not political or otherwise constitutionally protected conduct.

In an appeal from an order dismissing plaintiff's labor complaint on summary judgment, order is affirmed where plaintiff's allegations of wrongdoing on the grounds of impermissible reclassification of her employment position and breach of the duty of fair representation fail under Section 301 of the Labor Management Relations Act.

In an appeal from a judgment of the district court dismissing appellant's disability discrimination complaint for failure to timely file a formal complaint with the EEOC, judgment is affirmed where the court's finding of no equitable exception was not an abuse of discretion.

In an appeal from a judgment of the district court dismissing appellant's complaint for employment discrimination on account of his disability and retaliation under the Rehabilitation Act, judgment is affirmed where the Aviation and Transportation Security Act precludes a cause of action under the Rehabilitation Act.

In an application for enforcement of an order of the petitioner compelling the disclosure of certain aptitude test scores to a Union for purposes of collective bargaining, petition is denied where employees have a legitimate and substantial privacy interest in their test scores and because the petitioner failed to engage in a balancing of interests

In an appeal from a judgment of the district court dismissing, as untimely, plaintiff's ERISA action filed three years after he suffered a disability while employed by the defendant, judgment is reversed on principles of equity because subject Plan was amended to provide a limitations period only after plaintiff had filed a claim and was in the middle of an internal appeals process.

In an appeal from an order of the district court dismissing plaintiff's ADA claim that defendant-employer discriminated against him on the basis of his epilepsy, judgment is affirmed where defendant's condition does not render him disabled within the meaning of the ADA, and because the court did not abuse its discretion in declining to exercise supplemental jurisdiction over plaintiff's state claims.

In an appeal from a judgment of the district court granting summary judgment in favor of defendant in a Title VII and Rehabiliation Act action for disability discrimination in violation of the ADA, judgment is affirmed where the record supported summary judgment and because the court correctly: 1) refused to consider evidence for which no corresponding English translation was provided; 2) admitted summary charts prepared by a paralegal employed by the defendant-appellees' law firm; and 3) dismissed, sua sponte, plaintiff's equal protection claim.

In an appeal from a judgment of the district court dismissing, on summary adjudication, plaintiff's Title VII and Section 1981 action for discrimination, retaliation, and a hostile work environment, judgment is affirmed where plaintiff failed to establish evidence of actual animus because the record does not support plaintiff's claim of scheduling and treatment disparities

In an appeal from a judgment of the district court dismissing plaintiffs' Section 1983 action on summary adjudication, judgment is affirmed where the district court correctly concluded that plaintiffs had failed in their burden of producing evidence sufficient to show their terminations constituted due process deprivations or were politically motivated

In an appeal from a judgment of the district court granting summary adjudication in favor of the defendant in plaintiff's Title VII and ADEA claims, judgment is affirmed where plaintiff did not exhaust the required administrative remedies on her Title VII claim as she failed to raise it in an antecedent EEO complaint and because no reasonable factfinder could conclude that age was a motivating factor in defendant's decision to bypass plaintiff for a promotion.

In an appeal from a judgment of the district court enjoining appellants from working in office supply sales within a certain locale based on the parties' noncompetition agreements, judgment is reversed where under the plain language of subject agreements, the one-year noncompetition period was triggered in 1996, when plaintiff's predecessor in interest purchased all of the shares of the appellants' employer.

In an appeal from a judgment of the district court awarding damages and attorneys' fees against defendant for violating the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. Sections 4311 et seq., and related state claims, judgment is affirmed over challenges on the grounds that: 1) Massachusetts anti-discrimination law, Mass. Gen. Laws ch. 151B, is preempted by the USERRA; 2) the jury determination of willfulness was unsupported; and 3) the damages and attorneys' fees awards were excessive.

In an appeal from a judgment of the district court awarding plaintiff damages and a permanent injunction in a Title VII and state law action for gender-discrimination and retaliation, judgment is affirmed where the court committed not error and correctly awarded plaintiff $1,352,525.94 in attorneys' fees under the lodestar calculation.

In an employment action for unlawful discrimination on the basis of a medical condition and hostile work environment, judgment of the district court dismissing complaint by plaintiff who suffered schizophrenia throughout the period of his employment is reversed where complaint stated plausible discrimination based on the perception that plaintiff is disabled, but affirmed where Title I of the ADA does not provide for liability against individuals who are not themselves employers, and in all other respects

In a class-action dispute arising from the termination of certain benefits paid to retired firefighters and police officers, judgment of the district granting defendant partial summary judgment is affirmed where the plaintiffs, with the exception of two who succeeded in making out a claimant-specific case for estoppel, failed to show any basis in law or in equity sufficient to force payment of retirement benefits

In a labor and employment action alleging violations of the ADA, 42 U.S.C. section 12101 et seq., judgment of the district court is reversed where it improperly granted, in a short oral ruling, defendant's oral motion for judgment as a matter of law

In an civil rights action arising from the termination of plaintiff from his employment as the Assistant Secretary of State for Protocol Affairs at the Puerto Rico State Department, 42 U.S.C. sections 1981, 1983, 1985, 1986, and 1988, summary judgment in favor of defendant and Rule 11 sanctions are affirmed where plaintiff's political affiliation was an appropriate basis for dismissal and the impostion of sanctions was not an abuse of discretion

In a Title VII dispute involving the proper interpretation of the caps on compensatory and punitive damages under 42 U.S.C. section 1981a(b)(3), judgment of the trial court reducing jury award is reversed where "current" year for purposes of section 1981a(b)(3) liability refers to the year of the discrimination

In a Title VII action alleging gender discrimination, district court's remittitur of $150, 000 is affirmed where court's finding that although the evidence produced at trial was sufficient to show a hostile work environment, the evidence did not support the amount of damages awarded did not constitute an abuse of discretion.

In a Title VII dispute alleging racial discrimination during the course of employment, Rule 12(b)(6) dismissal by district court on the grounds that Title VII applies to employers, not individual supervisors, is affirmed in part and vacated in part where the complaint plausibly alleged claims of racial discrimination and Equal Protection violations.

In a labor and employment dispute alleging a hostile, racial working environment, summary judgment in favor of employer is affirmed where the employer, when notified of the hostile environment, took prompt and appropriate corrective action.

In a woman's civil rights suit under 42 U.S.C. section 1983, alleging sexual harassment and discrimination by her employment supervisor at a Puerto Rican government insurance fund, dismissal of equal protection claims is affirmed where they were filed after the statute of limitations had run.

In a civil rights action under 42 U.S.C. section 1983, alleging that a government employee's termination violated her federal constitutional rights to freedom of speech and association, due process, and equal protection, dismissal of the complaint is affirmed as to the named defendants, but the case is remanded to allow plaintiff to move promptly to add a "John Doe" defendant, where it is evident that someone fired her based on political party membership.

In a suit brought by radiology technologists in the diagnostic imaging service at a Department of Veterans Affairs medical center, under the Title VII of the Civil Rights Act of 1964, claiming gender-based discrimination, retaliation, and constructive discharge, the district court\'s entry of summary judgment in favor of the employer is affirmed where: 1) because the employer did not refuse to hire any of the plaintiffs, the record presents no trialworthy issue as to discriminatory hiring; 2) plaintiffs\' retaliation claim fails on the merits and the employer has articulated a legitimate, nondiscriminatory reason for each of the challenged actions, and the plaintiffs have adduced no significantly probative evidence tending to show that the proffered reasons were a pretext masking a retaliatory animus; and 3) the fact that the vast majority of the employees who worked under defendant, male and female, were subject to the same treatment and chose to stay, underscores the absence of any foundation for a claim of constructive discharge.

In plaintiff\'s suit against his employer, claiming that the employer discriminated and retaliated against him based on his military service in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA) and Puerto Rico law, district court\'s grant of summary judgment in favor of the employer is affirmed in part, reversed in part and remanded where: 1) because plaintiff has not shown evidence of discrimination other than the fact of non-selection and membership in the protected class, defendant is entitled to summary judgment on plaintiff\'s claim that defendant\'s failure to hire him for the reliability engineer position violated USERRA; 2) plaintiff has not made the requisite showing under USERRA that his military status was a motivating factor in defendant\'s decision to award a low performance rating; 3) the district court erred in granting summary judgment on the issue of whether defendant\'s extension of the Performance Improvement Plan was an improper discriminatory action, as the evidence is sufficiently strong that a reasonable jury could find in plaintiff\'s favor; 4) plaintiff has failed to raise a cognizable claim with respect to the issue of being denied facility access; 5) there is no basis for the jury to conclude that plaintiff was subject to a hostile work environment; and 6) plaintiff has failed to establish that defendant retaliated against him in violation of USERRA for filing a complaint with the U.S. Department of Labor, Veterans\' Employment Training Services.

In plaintiff's age discrimination in employment suit, district court's dismissal of the discriminatory discharge claim and denial of plaintiff's motions for reconsideration are affirmed where: 1) there is insufficient evidence to draw the inference that impermissible age discrimination was the determinative factor in plaintiff's termination; and 2) there was no abuse of discretion in the district court's denial of plaintiff's motions for reconsideration, as plaintiff failed to point to any manifest error of law in the district court's judgment dismissing his ADEA claim.

In plaintiff's Title VII suit claiming that she was sexually harassed by a co-worker and subsequently by a supervisor at a Fort Buchanan Army garrison in Puerto Rico, and then fired in retaliation for filing her sexual harassment complaints, judgment of the district court is affirmed in part, vacated in part and remanded where: 1) district court's grant of summary judgment for the defendant on the sexual harassment claim against the supervisor is vacated and remanded as it cannot be ruled as a matter of law that the circumstances of plaintiff's employment did not constitute a hostile work environment; 2) the district court was well within its discretion in finding that plaintiff was not entitled to the benefit of equitable estoppel in her harassment claim against her co-worker; 3) it would be impossible for a rational jury to conclude that the supervisor's actions from October 2004 through mid-May 2005, which were taken in ignorance of plaintiff's sexual harassment complaint against the co-worker, were motivated by his desire to retaliate against her for those complaints; and 4) it would not be reasonable for a jury to conclude that the supervisor's actions were motivated by plaintiff's sexual harassment complaint against him.

In plaintiff's suit for retaliation under Title VII against the U.S. Secretary of Agriculture, claiming that the USDA engaged in discriminatory employment and recruitment practices against him in retaliation for having engaged in protected activity, district court's grant of defendant's motion for summary judgment is affirmed as plaintiff's claims are barred as the alleged retaliatory conduct occurred prior to the effective date of the parties' settlement agreement, and the agreement complied with the relevant regulation.

In plaintiff's suit against the Department of the Army and others, claiming that sexual harassment by her co-worker at an Army medical clinic subjected her to a hostile work environment in violation of Title VII, district court's grant of defendants' motion for summary judgment is vacated and remanded as a reasonably jury could find that plaintiff met her burden to show conduct that created a hostile work environment within the meaning of Title VII.

In police officers' putative class action suit against a town claiming that the town failed to pay them sufficient overtime in violation of the FLSA, district court's grant of partial summary judgment holding that the town met the eligibility requirements for the public safety exception is affirmed where: 1) plaintiffs' argument that the town was required to notify affected employees before establishing a valid work period under section 207(k) is rejected; 2) the text of the statute, as well as caselaw, confirm that a public employer need only establish a section 207(k) compliant work period to claim the exemption's benefits without explicitly giving notice to affected employees, and here, the town has done so and is entitled to judgment; and 3) plaintiffs' claim that the district court abused its discretion by denying their motion to strike certain evidence is rejected.

In plaintiff's age discrimination suit against his former employer, district court's grant of summary judgment in favor of defendant is vacated and remanded as, under the three stage burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), several aspects of the evidence, taken together, are more than sufficient to support a factfinder's conclusion that defendant was motivated by age-based discrimination, thus raising a genuine issue of material fact that defeats summary judgment.

In an employment discrimination action, summary judgment for defendant is reversed where: 1) plaintiff established a prima facie case of discrimination under state law as she put forth evidence that defendant regarded plaintiff as handicapped, that she was still able to perform the essential functions of the job despite the handicap, and that she suffered an adverse employment action as a result of her handicap; and 2) a reasonable jury could find that the removal of plaintiff from the work schedule was predicated on impermissible discrimination rather than a permissible legitimate concern about her ability to perform the job safely.

Second Circuit

Appeals from federal district (trial level) courts in Connecticut, New York, and Vermont

Held that a former corrections officer could not proceed with his claim that he suffered retaliation for reporting that another officer (his sister's ex-boyfriend) was misusing a police database. Affirmed summary judgment against his First Amendment and other claims, partly on grounds of qualified immunity.

Denied a petition for review of a National Labor Relations Board order. A nursing-home operator contended that it did not engage in unfair labor practices when certain workers employed by a company-retained management firm for 15 months were returned to the company's employment without seniority, tenure, and other features of their prior positions. Agreeing with the NLRB, the Second Circuit denied the petition for review and granted the Board's cross-application for enforcement of its remedial order.

Affirming in part, reversing in part, and remanding a decision by the district court, that statements by a police officer, who was also a union official, during union meetings were not made in his capacity as a private citizen and as such his remarks were not protected by the First Amendment and he therefore couldn't state a claim of retaliation because the court concluded that the statements were not made pursuant to his official duties as a police officer, so he spoke as a private citizen for the purpose of the First Amendment, but finding that the defendants are entitled to qualified immunity and no plausible claim for municipal liability was alleged against Yonkers.

Vacating in part and remanding a case in which a former employee sued his employers alleging violations of state and federal labor and human trafficking laws for their treatment of him as a domestic worker for a Bangladeshi diplomat because cumulative liquidated damages may not be awarded for the same course of conduct under both the Fair Labor Standards Act and the New York Labor Law.

Affirming the determination by the National Labor Relations Board that a company violated sections of the National Labor Relations Act in its efforts to dissuade employees from voting for a union as their representative but denying enforcement of an order to bargain because it didn't properly account for changed circumstances between the time of the unfair labor practices and the decision.

Denying the petition for review of a final order by the Occupational Safety and Health Review Commission affirming a citation issued to a construction company for repeated violations of excavation standards and assessing a penalty because the burden shifting employed by the Commission was not improper.

Affirming the denial of a plaintiff motion for judgment as a matter of law that they were an employee of a college they say fired them after reporting racist graffiti because the district court correctly found that they were not an employee for Title VII purposes.

Reversing a district court dismissal of a pro se litigant's complaint because they erred in holding that administrative exhaustion must be pleaded in the complaint in a case involving a man alleging discrimination and retaliation following his filing of complaints against the City of Hartford with the Department of Occupational Safety and Health Administration because administrative exhaustion is an affirmative defense.

Affirming the dismissal through summary judgment of claims filed by five participants in the Hearst Corporation's internship programs under the Fair Labor Standards Act (FLSA), claiming minimum wage violations, because unpaid interns are not employees of Hearst for the purpose of the FLSA.

Enforcing the order of the National Labor Relations Board against a nonprofit organization that violated the National Labor Relations Act by promulgating an unlawful confidentiality agreement and terminating an employee for his refusal to sign the unlawful agreement.

Affirming that an ordinance passed by a town to regulate the roadside solicitation of employment did not comply with the First Amendment of the constitution and granting injunctive relief to the plaintiff organizations working to advance the interests of day laborers.

Vacating and remanding a sex discrimination and retaliation case that was dismissed for failure to state a claim because a Title VII action can still be supported where an employee is given a termination of employment notice that is revoked before it becomes effective.

In an employment case involving a provision of the New York City Human Rights Law (NYCHRL) that defines only 'recovering' or 'recovered' alcoholics as having a 'disability', the Court certifies the following question to the New York Court of Appeals: Do sections 8-102(16)(c) and 8-107(1)(a) of the New York City Administrative Code preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?

In petition for enforcement of an order of the National Labor Relations Board (NLRB) and an employer's cross&#8208;petition, the NLRB's decision is affirmed where: 1) employer has not shown the existence of an 'extraordinary circumstance' that requires us to waive the ordinary rule against considering arguments not presented to the Board as required by 29 U.S.C. section 160(e); and 2) employer violated Sections 8(a)(1) and 8(a)(3) by discharging the employee since employee's conduct was not so 'opprobrious' as to lose the protection of the NLRA.

In a collective action brought by black-car drivers in the greater New York City area against owners of black&#8208;car 'base licenses' and affiliated entities, pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. section 201, and the New York State Labor Law (NYLL), N.Y. Lab. Law section 650, for unpaid overtime, the district court's grant of summary judgment on both the FLSA and NYLL claims to defendants is affirmed where, as a matter of law, plaintiffs are properly classified as independent contractors rather than employees' for purposes of both statutes.

In a case alleging that plaintiff's former employer interfered with and denied his right under the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. section 2601 et seq., to take leave in order to take care of his seriously ill grandfather who, in loco parentis, had raised him as a child, the district court's grant of summary judgment to defendant is vacated where because plaintiff met the eligibility requirements for FMLA leave and requested that leave expressly to care for his seriously ill grandfather, defendant as an employer covered by the FMLA had an obligation to specify any additional information that it needed in order to determine whether plaintiff was entitled to such leave.

In an employment action claiming violations of various state and federal statutes by not allowing plaintiff to work remotely when she became pregnant, the district court's judgment in favor of defendant is: 1) vacated in part as to the adoption of the jury verdict where the district court abused its discretion in admitting evidence of the reinstatement offer because the offer was, as a matter of law, not unconditional; and 2) vacated as to the disqualification order where the district court erred in sua sponte disqualifying the attorneys, because the disqualification depended on the erroneous admission of evidence relating to the reinstatement offer. The appeal is dismissed insofar as it pertains to claims under the Human Rights Law (NYSHRL) where we lack jurisdiction over appellant&rsquo;s challenge to the district court&rsquo;s NYSHRL ruling.

In a labor suit brought by a union member alleging that his employer, and specifically its CEO and plaintiff&rsquo;s direct supervisor, discriminated and retaliated against him in violation of several federal and New York state statutes, the District Court's grant of defendants' motion to compel arbitration and dismissal of the suit are vacated and remanded for further proceedings where the collective bargaining agreement (CBA) does not contain a 'clear and unmistakable' waiver of plaintiff&rsquo;s right to pursue his statutory claims in federal court.

In a labor suit against the company that operates the food, beverage and merchandise sales concessions at Oriole Park, alleging claims for overtime compensation under the Fair Labor Standards Act (FLSA), 29 U.S.C. section 201 et. seq., the District Court\'s grant of summary judgment in favor of defendants is affirmed where an establishment that operates on the premises of an amusement or recreational host, selling goods or services to the host\'s customers for their consumption or use as they engage in the host\'s amusement or recreational activities, is a \'concessionaire\' with an \'amusement or recreational\' character.

In a suit brought by an emergency medical technician who was subjected to unwanted sexual overtures by another employee while on the job, the District Court's dismissal the case, holding that the retaliatory intent of plaintiff's co-worker, a low-level employee, could not be imputed to employer and that employer consequently could not have engaged in retaliation, is vacated where agency principles permit the retaliatory intent of employer's co-worker to be imputed, as a result of defendant's alleged negligence, to defendant.

In a labor and employment action, arising after plaintiff was allegedly fired in retaliation for speaking to local officials about her police supervisors assigning themselves unnecessary overtime to increase their pay and pensions, the district court's denial of defendants' motion for summary judgment is affirmed where, accepting plaintiff's facts as true, defendants are not entitled to qualified immunity on plaintiff's claim that they retaliated against her for engaging in protected speech under the First Amendment.

In an employment action in which two employee-plaintiffs, under threat of termination, refused to explain themselves to their employer-defendant, which was facing a threat of criminal indictment premised on the actions of the plaintiffs, the District Court's summary judgment dismissing the complaint is affirmed where defendant had cause to fire plaintiffs for their refusal to comply with its reasonable order.

In a suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. sections 2000e et seq. (Title VII), and the New York State Human Rights Law, N.Y. Exec. Law sections 290 et seq. (NYSHRL) alleging that plaintiff's former employer, defendant New York State Department of Labor, unlawfully retaliated against her for opposing an employment practice proscribed by Title VII and the NYSHRL, the District Court's dismissal under Federal Rule of Civil Procedure 12(b)(6) is affirmed where reasonably have believed that the conduct she opposed violated either statute.

In a dispute arising out of the alleged improper use of deflated footballs by professional football athlete Tom Brady, the District Court's vacation of the NFL Commissioner's award confirming the discipline of Brady, based upon the court's finding of fundamental unfairness and lack of notice, is reversed where: 1) the Commissioner properly exercised his broad discretion under the collective bargaining agreement; and 2) his procedural rulings were properly grounded in that agreement and did not deprive Brady of fundamental fairness.

In an ERISA class action, brought by a putative class of former participants in an employee stock ownership plan invested exclusively in Lehman Brothers' common stock, the district court's dismissal under F.R. Civ. Pro 12(b)(6) is affirmed where plaintiffs have failed to plausibly plead that defendants breached their ERISA duties.

In a labor and employment action, brought by a former Assistant Solicitor General in the New York Office of the Attorney General against her former employer and alleging discrimination under the Rehabilitation Act of 1973, 29 U.S.C. section 701 et seq., the district court's denial of defendant's motion to dismiss is affirmed where the district court's ruling that it retains subject matter jurisdiction under the Government Employee Rights Act is not a final order and not subject to the collateral order doctrine.

In an employment action challenging plaintiff's dismissal as a contract court security officer by defendant U.S. Marshals Service, the district court's grant of defendant's motion to dismiss is affirmed in part and vacated in part where: 1) plaintiff was not entitled to a Bivens claim because other avenues existed for challenging his dismissal; and 2) plaintiff's claim under the Administrative Procedure Act, 5 U.S.C. section 702, was not impliedly forbidden by the Tucker Act, 28 U.S.C. section 1491.

In an action against an agency and officials of the State of Vermont, alleging claims under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. sections 201 et seq., which defendants removed to federal court, the district court's grant of defendant's motion to dismiss on the basis of sovereign immunity from private suit under the FLSA is affirmed where, while defendants removal to federal court waived their Eleventh Amendment immunity from suit in federal court, it did not waive Vermont's general sovereign immunity and Vermont has not otherwise waived it.

In an enforcement action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e et seq., alleging that defendant engaged in a nationwide practice of sex-base pay and promotion discrimination, the district court's grant of summary judgment is reversed where the magistrate judge improperly reviewed the sufficiency of the evidence of the EEOC investigation rather than whether there was an investigation.

In a suit under the Americans with Disabilities Act (ADA), 42 U.S.C. sections 12112-12117, the district court's grant of summary judgment dismissing the claims is: 1) vacated and remanded with respect to plaintiff's disability discrimination claim where, relying on Collins v. New York City Transit Authority, 305 F.3d 113 (2d Cir. 2002), the district court gave almost preclusive weight to the NYSDHR's dismissal of this claim, however Collins addresses only the effect of arbitration awards under a collective bargaining agreement and does not apply to the decisions of state administrative agencies; but 2) otherwise affirmed.

In a civil rights employment action by a teacher bringing discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e et seq., and 42 U.S.C. section 1983 against a school district, alleging defendants discriminated against him because of his "Hispanic ethnicity" and that they retaliated against him after he complained of discrimination, the district court's grant of defendants' motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is reversed where: 1) certain of plaintiff's claims were not time-barred, as the district court had concluded; 2) retaliation claims are actionable under section 1983; 3) a Title VII plaintiff need to plead a prima facie case of discrimination to survive a motion to dismiss; and 4) plaintiff has sufficiently pleaded discrimination and retaliation claims.

In an a case alleging violations of the Fair Labor Standards Act (FLSA) and New York state law, the district court's refusal to enter the parties' stipulation of settlement, dismissing with prejudice, plaintiff's claims is affirmed where absent such approval, plaintiffs cannot settle their FLSA claims through a private stipulated dismissal with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii).

In a lawsuit against an accounting company and its retirement plan, alleging that the plan violated the Employee Retirement Income Security Act of 1974 (ERISA), the district court's denial of defendants' motion to dismiss is affirmed where the plan's definition of "normal retirement age" as five years of service violates the statute not because five years of service is not an "age" but because it bears no plausible relation to "normal retirement."

In a putative class action against law firm Skadden, Arps, Slate, Meagher &amp; Flom LLP and Tower Legal Staffing, Inc. for violations of the overtime provision of the Fair Labor Standards Act, 29 U.S.C. sections 201 et seq. (FLSA), arising out of plaintiff's work as a contract attorney in North Carolina, the district court's dismissal of the action is vacated where, although state not federal law informs FLSA's definition of "practice of law", and North Carolina has the greatest interest in this litigation, the district court erred in its conclusion that by undertaking the document review plaintiff was allegedly hired to conduct, plaintiff was necessarily "practicing law" within the meaning of North Carolina law.

In a class action brought by unpaid interns hired by defendant, claiming compensation as employees under the Fair Labor Standards Act and New York Labor Law, the district court's orders granting plaintiff's motion for partial summary judgment and conditional certification of plaintiff's nationwide collective are vacated and remanded for further proceedings where: 1) when determining when an unpaid intern is entitled to compensation as an employee under the FLSA, the proper question is whether the intern or the employer is the primary beneficiary of the relationship; and 2) the district court erred by concluding that plaintiff demonstrated predominance of the class because it misconstrued the Circuit standards for determining when common questions predominate over individual ones.

In a putative class action alleging violations of state and federal overtime laws, the district court's denial of employer's motion to compel arbitration pursuant to an arbitration clause in the plaintiffs' contracts is affirmed where the court correctly read the arbitration agreement to incorporate the rules of the Financial Industry Regulatory Authority (FINRA), which bar FINRA arbitrators from hearing claims that have been brought as putative class or collective actions.

In a case under the Americans with Disabilities Act and the New York State Human Rights Law, alleging violations by IBM when it refused to reasonably accommodate plaintiff's deafness by declining to caption all the videos and provide transcripts of all the audio files that are hosted on its corporate intranet, the district court's grant of summary judgment to employer is affirmed where: 1) employer reasonably accommodated plaintiff by providing American Sign Language interpreters capable of translating intranet files; and 2) in light of this accommodation, plaintiff has no claim that employer failed to engage him in an interactive process.

In an retaliation claim brought under the Fair Labor Standards Act (FLSA), the district court's judgment in favor of employer is reversed where the US Supreme Court decision in Kasten v. Saint-Globen Performance Plastics Corp, 131 S.Ct. 1325, which held that an oral complaint can serve as a predicate to an FLSA retaliation claim, casts doubt on Lambert v. Genesee Hosp., 10 F. 3d 46 (2d Cir. 1993), the case that formed that basis for the district court's decision.

In this discriminatory discharge action, the district court held that plaintiff former employee was judicially estopped from showing that she was qualified for her position at the time of her termination, which is an element of discriminatory discharge claim brought under Title VII of the Civil Rights Act and 42 U.S.C. section 1981, because she applied for and received Social Security disability benefits based on her statement that she was fully disabled as of a date prior to her termination. Summary judgment in favor of defendant-employer is affirmed, where plaintiff failed to proffer a sufficient explanation for the contradictory statements.

Judgment dismissing plaintiffs' defamation claims against defendant GoDaddy and retaliation claims against defendant Teamsters Union Local 456 is affirmed, where: 1) the alleged false statements about plaintiffs were republished on a website hosted on GoDaddy's servers; 2) the defamation claims fail because the Communications Decency Act shields GoDaddy, a web host, from defamation liability; and 3) the labor claims are barred by the National Labor Relations Act's six-month statute of limitations.

In this case, plaintiff police officer brought suit against the City of New York, alleging that the City retaliated against him for speaking to his commanding officers about an arrest quota policy at his precinct of the New York City Police Department. Judgment of the district court granting defendants' motion for summary judgment, holding that plaintiff spoke as a public employee, not a citizen, and that his speech was therefore not protected by the First Amendment, is vacated and remanded, where because plaintiff's comments on precinct policy did not fall within his official duties and because he elected a channel with a civilian analogue to pursue his complaint, he spoke as a citizen.

Summary judgment in defendants' favor on plaintiff's claims for age discrimination under the Age Discrimination in Employment Act and the New York City Human Rights Law (NYCHRL) is vacated as to the NYCHRL portion of the judgment, and remanded, where the district court failed to separately and independently analyze plaintiff's NYCHRL claim.

Denial of a petition for an injunction prohibiting hotelier-defendant from engaging in unfair labor practices and ordering the immediate reinstatement of certain discharged employees is affirmed in part and reversed in part, where: 1) of the thirty-seven eligible housekeeping employees identified in the original petition, all have now been offered reinstatement with Remington, and nothing indicates that the non-returning employees would return if an injunction were issued; 2) a cease and desist order prohibiting the unfair labor practices identified in the complaint has been issued; 3) an injunction is therefore not "just and proper" at this time as it cannot restore the status quo as it existed prior to the unfair labor practices; and 4) the court failed to consider employee Lociacono, however, who was discharged for her support of union organizing, and who was not a housekeeping employee and therefore did not receive an offer of re-employment

In this case, intervenor police unions seek to challenge the ruling of Judge Scheindlin that the City of New York (City) "stop-and-frisk" policy was carried out in a discriminatory manner. Denial of the unions' motions to intervene is affirmed and the City's motion for voluntary dismissal of the appeals with prejudice is granted, where: 1) the unions' motions to intervene are untimely (filed in September 2013 after years of public scrutiny and public filings related to "stop-and-frisk"), and allowing the unions to revive a now-settled dispute by intervening at this late juncture would substantially prejudice the existing parties; and 2) the unions' interests in their members' reputations and collective bargaining rights are too remote from the "subject of the action" to warrant intervention as a party. - See more at: http://caselaw.findlaw.com/summary/opinion/us-2nd-circuit/2014/10/31/271971.html#sthash.UaByH5de.dpuf

In this employment discrimination action, an order denying defendant police supervisors' motions for summary judgment is: 1) affirmed in part, where defendant Carlone failed to establish either that he did not violate plaintiff Raspardo's constitutional right to equal protection or that the right was not clearly established at the time of the conduct-at-issue, and is thus not entitled to qualified immunity on Raspardo's hostile work environment claim; and 2) reversed in part, where defendants are protected by qualified immunity in all other respects. - See more at: http://caselaw.findlaw.com/summary/opinion/us-2nd-circuit/2014/10/06/271683.html#sthash.bDVEDmqz.dpuf

In this suit brought against defendant Port Authority, brought pursuant to the Equal Pay Act, for unequal pay for male and female male attorneys performing allegedly equal work, dismissal of plaintiff Equal Employment Opportunity Commission's (EEOC) complaint is affirmed, where the EEOC did not allege any facts supporting a comparison between the attorneys' actual job duties, thereby precluding a reasonable inference that the attorneys performed "equal work." - See more at: http://caselaw.findlaw.com/summary/opinion/us-2nd-circuit/2014/09/29/271616.html#sthash.8RA4Q7yM.dpuf

In this suit brought by plaintiff police officer alleging race discrimination and retaliation, order granting summary judgment in favor of defendants is: 1) affirmed in part as to the Title VII retaliation claim, where plaintiff has alleged nothing beyond temporal proximity to establish pretext for the supposed retaliatory transfer; and 2) vacated in part and remanded for further proceedings as to the Title VII race discrimination claim, where certain statements about plaintiff's ability to "fit in" raise a genuine dispute as to whether the proffered reasons for his non-assignment to the Major Crimes division was pre-textual. Additional Information at http://caselaw.findlaw.com/summary/opinion/us-2nd-circuit/2014/08/26/271235.html.

Judgment for plaintiff in an action alleging employment discrimination and harassment is: 1) affirmed in part, where plaintiff presented sufficient evidence for a reasonable jury to find, as this jury did, that the defendants were liable on his state-law discrimination claims, and the award of backpay is undisturbed; 2) reversed in part, where although the plaintiff sufficiently alleged a constitutional violation, the relevant constitutional rights during the time in question were not clearly established and therefore the individual defendants are entitled to qualified immunity so the award of punitive damages against the individual defendants is vacated; 3) affirmed in part, where there was sufficient evidence presented to the jury for a reasonable fact-finder to determine that the municipal defendant was liable on plaintiff's claim under 42 U.S.C. section 1983, so the award of punitive damages on this claim was proper; and 4) affirmed in part, where the district court did not abuse its discretion in awarding attorney's fees to the plaintiff in an amount substantially less than the amount claimed. (Amended opinion)

Judgment for defendant-employer on plaintiff-employees' claims that they were subjected to a hostile work environment on the basis of race and national origin and were retaliated against for complaining about the hostile work environment is: 1) vacated in part and remanded, where genuine issues of material fact exist as to plaintiff Rivera's hostile work environment claims and as to all of plaintiff Talton's claims; but 2) affirmed in part, as to plaintiff Rivera's claims of retaliation. (Amended opinion)

Summary judgment in favor of Vermont finding that the Employee Retirement Income Security Act of 1974 (ERISA) does not preempt a Vermont statute and regulation requiring self-insured employee health plans to report to the state, in specified format, claims data and "other information relating to health care," is reversed and remanded, where Vermont law, as applied to compel the reporting of plaintiff's plan data, is preempted.

Judgment for plaintiff in an action alleging employment discrimination and harassment is: 1) affirmed in part, where plaintiff presented sufficient evidence for a reasonable jury to find, as this jury did, that the defendants were liable on his state-law discrimination claims, and the award of backpay is undisturbed; 2) reversed in part, where although the plaintiff sufficiently alleged a constitutional violation, the relevant constitutional rights during the time in question were not clearly established and therefore the individual defendants are entitled to qualified immunity so the award of punitive damages against the individual defendants is vacated; 3) affirmed in part, where there was sufficient evidence presented to the jury for a reasonable fact-finder to determine that the municipal defendant was liable on plaintiff's claim under 42 U.S.C. section 1983, so the award of punitive damages on this claim was proper; and 4) affirmed in part, where the district court did not abuse its discretion in awarding attorney's fees to the plaintiff in an amount substantially less than the amount claimed.

In an action for the recovery of benefits under an employer's retirement plan, the district court's decision upholding the plan administrator's proposed offset is vacated and remanded, where the proposed offset is an unreasonable interpretation of the retirement plan and that violates ERISA's notice provisions

The district court's order granting a petition by the National Labor Relations Board, to temporarily enjoin alleged unfair labor practices by defendants, is affirmed, where: 1) it is unnecessary to reach the issue of the validity of the President's recess appointments to the Board; 2) the Board may contingently delegate power to authorize such petition to the Board's General Counsel; 3) such delegations, made in 2001 and 2002, were in effect here; 4) the petition at issue was properly authorized by the General Counsel pursuant to those delegations; and 5) the district court did not otherwise abuse its discretion in granting the petition in this case.

The district court's order imposing sanctions on plaintiff's attorney for asserting that her client had pled a gender discrimination claim that he had not is reversed and vacated, where: 1) the district court misapplied the relevant legal standard; and 2) the record before the district court could not sustain a finding that plaintiff's attorney was in bad faith in asserting that plaintiff's pro se complaint included a claim of gender discrimination.

In an action seeking a refund of Federal Insurance Contribution Act (FICA) taxes withheld by defendant-employer and collected by defendant IRS on a $250,000 settlement payment made by defendant- employer to plaintiff for his agreement to withdraw his Age Discrimination in Employment Act complaint which he filed after defendant-employer terminated his longtime employment, dismissal of the complaint against defendant-employer and summary judgment for defendant IRS are affirmed, where the district court did not err in concluding that the settlement payments constituted "wages" received "with respect to employment" under 26 U.S.C. section 3121, and was thus subject to FICA taxes

The district court's order denying defendant's motion to dismiss and to compel arbitration of plaintiff's putative class action brought by plaintiff-employee to recover overtime wages pursuant to the Fair Labor Standards Act (FLSA), is reversed and remanded, where: 1) The FLSA does not include a "contrary congressional command" that prevents a class-action waiver provision in an arbitration agreement from being enforced by its terms; and 2) in light of the Supreme Court's recent decision in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), plaintiff's argument that proceeding individually in arbitration would be "prohibitively expensive" is not a sufficient basis to invalidate the class-action waiver provision at issue here under the "effective vindication doctrine."

Petition for review of orders of the defendant-National Labor Relations Board principally denying backpay to undocumented alien petitioners who had been discharged by their employer in violation of the National Labor Relations Act, is: 1) granted in part to the extent that the matter is remanded to the Board for consideration of issues relating to petitioners' request for conditional reinstatement; but 2) otherwise denied.

In a wage and hour class action, partial summary judgment for a class of plaintiffs concluding that defendant-owner of defendant supermarket was the plaintiffs' "employer" is: 1) affirmed in part, where the district court did not err in determining that defendant-owner was an employer under the Fair Labor Standards Act so as to hold him jointly and severally liable for damages along with the corporate defendants; but 2) vacated in part and remanded on the claims under the New York Labor Law.

The State's action of placing a global positioning system (GPS) device on the care of a government employee, who was being investigated for submitting false time reports, was a search within the meaning of the State and Federal Constitutions, which did not require a warrant, but on the facts of this case it was unreasonable in its scope

In response to certified questions from The United States Court of Appeals for the Second Circuit regarding defendant's tip-splitting policy under N.Y. Labor Law section 196-d: 1) an employee whose personal service to patrons is a principal or regular part of his or her duties may participate in an employer-mandated tip allocation arrangement under Labor Law section 196-d, even if that employee possesses limited supervisory responsibilities, but an employee granted meaningful authority or control over subordinates can no longer be considered similar to waiters and busboys within the meaning of section 196-d and, consequently, is not eligible to participate in a tip pool; and 2) defendant's decision to exclude assistant store managers from the tip pool is not contrary to Labor Law section 196-d.

Following judgment for plaintiff in a breach of contract/employment action, the district court correctly, and constitutionally, held that plaintiff was entitled to post-judgment interest at the rate set forth in 28 U.S.C. section 1961, and not the post-judgment interest rate provided for in New York C.P.L.R. section 5004, notwithstanding that the judgment had been entered in a diversity action and had been docketed by plaintiff in a New York state court

In an employment discrimination action, the District Court did not err in dismissing plaintiff\'s prevailing wage claim, denying him punitive damages, or in denying his motion for a new trial with respect to damages, where: 1) the Davis-Bacon Act bars third-party private contract actions, brought under state law, aimed at enforcing the Act's prevailing wage schedules, because such claims are clearly an impermissible end run around the Act; 2) there was no evidence by which a jury could reasonably conclude that defendant\'s conduct was driven by an evil motive or intent, or that it involved a reckless or callous indifference to plaintiff\'s federally protected rights; and 3) the jury could have reasonably concluded that plaintiff had not proven actual damages as a result of defendant\'s discriminatory conduct.

Judgment for plaintiffs and award of attorneys' fees in breach of contract action and related claims is: 1) vacated as to the district court's judgment and awards with respect to plaintiffs' breach of contract claim and remanded for further findings as to proximate causation; 2) vacated as to the award of attorneys' fees and remanded for recalculation of those fees following the district court's determination as to whether plaintiffs proved proximately-caused damages on the contract claim; 3) reversed with regard to the district court's decision that attorneys' fees should be reduced by twenty percent across-the-board, and the denial of interest on the attorneys' fees awards; and 4) affirmed in all other respects.

In civil rights action brought by the United States, alleging racial discrimination in the hiring of New York City firefighters: 1) summary judgment on the disparate treatment claim against defendant-city is vacated; 2) dismissal of the federal claims against Mayor Bloomberg is affirmed; 3) dismissal of the state law claims against Mayor Bloomberg and the Fire Commissioner is affirmed; 4) dismissal of the federal law claims against the Fire Commissioner is vacated; 5) the injunction against defendant-city with respect to the hiring of entry-level firefighters is modified, and, as modified, is affirmed; and 6) the bench trial on the liability phase of the discriminatory treatment claim against defendant-city is reassigned to a different district judge.

Dismissal of plaintiff's complaint for retaliation alleging that her employers retaliated against her after she complained about a supervisor's affair with a co-worker, is affirmed, where because there is no indication that plaintiff believed that her sex had anything to do with her treatment or that defendants could have understood her statements as such, she failed to establish a prima facie case for retaliation under Title VII or the NYSHRL.

Summary judgment for defendant on plaintiff's claims of gender discrimination and retaliation under the New York City Human Rights Law, is vacated and remanded, where under the broader standards of the City law, there are genuine disputes of material fact as to both plaintiff's claims that require a trial.

Summary judgment in favor of defendants in employment discrimination suit is affirmed, where: 1) the district court properly granted summary judgment in favor of defendants for substantially the reasons articulated by the district court in its thorough and well-reasoned Memorandum, Order &amp; Judgment; and 2) even it is assumed that defendants' actions resulted in an adverse employment action, no reasonable jury could find that such actions were motivated by a retaliatory animus.

In an action alleging that a pension plan administrator purchased and continued to hold certain mortgage-backed securities in violation of its fiduciary duties under ERISA, the District Court's dismissal is affirmed where the amended complaint fails to allege facts supporting the plausible inference that defendant knew or should have known that the particular mortgage-backed securities in the portfolio were imprudent investments, as a decline in market price of a type of security does not, by itself, give rise to the reasonable inference that it was imprudent to purchase or hold that type of security.

Summary judgment for defendant-government officials on plaintiff-public employees' claims that defendants retaliated against them for exercising their First Amendment rights of freedom of speech and of political association, is affirmed, where neither the "Absolut Corruption" parody created by plaintiff Singer, nor the plaintiffs' lawsuit, were what the law considers to be, for these purposes, speech as a citizen on a matter of public concern.

Petition for review of respondent-NLRB's decision that petitioner engaged in unfair labor practices in connection with its failure to give a union representing some of its employees a 2007 audited financial statement that the union sought during collective bargaining, is granted, and the NLRB's petition to enforce its decision is denied, where: 1) the NLRB's determination that petitioner asserted an inability to pay was not sufficiently supported by the evidence; 2) the NLRB erred in applying established law to the facts in this case; and 3) even assuming that petitioner had an obligation to provide the Union with the 2007 Financial Statement, the NLRB's finding that petitioner failed to satisfy this obligation is also insufficiently supported by the evidence.

District court improperly denied defendants' motion to compel arbitration of plaintiff Parisi's gender discrimination claim, and the order is reversed and remanded, where: 1) the arbitration agreement compelled arbitration of individual claims but not class claims; and 2) private plaintiffs do not have a substantive right to bring a Title VII class action utilizing the pattern-or-practice method of proof.

Summary judgment for plaintiff union was proper, where: 1) the district court correctly interpreted the parties' Facility Closure Agreement that it required defendants to pay a retiree medical allowance to certain eligible employees; and 2) plaintiff, as a party to that agreement, had standing to enforce it even where the benefits of enforcement accrued to third-party retirees

Petition for review of order dismissing petitioner's whistleblower retaliation claim under the Sarbanes-Oxley Act is denied, where: 1) although the Administrative Law Judge used an incorrect burden-shifting framework, the error was immaterial; and 2) the Administrative Review Board applied the correct standard in reviewing petitioner's claim and did not otherwise act arbitrarily, capriciously, or not in accordance with law

Summary judgment for defendant-employer on plaintiff's action under the Americans with Disabilities Act is vacated and remanded, where: 1) the district court's determinations with regard to plaintiff's disability discrimination and failure to accommodate claims was based on an incomplete factual analysis, facts which tend to undermine the defendant's claim that a specific arrival time is an essential function of plaintiff's position; 2) plaintiff has suggested plausible accommodations, meeting his burden at this stage of the analysis; and 3) as a matter of law, plaintiff's suggested accommodations do not appear to constitute undue hardships to the defendant and are therefore not unreasonable.

Judgment upholding defendant's determination that plaintiff was not disabled for the purpose of Social Security disability insurance benefits, is vacated and remanded, where: 1) the Administrative Law Judge erred in her treatment of plaintiff's claim that he suffered from fibromyalgia by failing to accord the proper weight to the opinion of plaintiff's treating physician, by misconstruing the record, and by failing to evaluate the claim in light of medically accepted diagnostic criteria; 2) the ALJ's determination that plaintiff could perform light work was not supported by substantial evidence; and 3) the ALJ further erred by not determining whether plaintiff's reaching limitation was non-negligible and would therefore require the testimony of a vocational expert. - See more at: http://caselaw.findlaw.com/summary/opinion/us-2nd-circuit/2013/02/21/262784.html?DCMP=NWL-cons_humanresource#sthash.muCXHxPu.dpuf

Petitions for review of decision of the National Labor Relations Board finding that petitioner had engaged in unfair labor practices when it refused to bargain over the effects of its decision to discontinue its policy of permitting Union members to take company vehicles home at night are denied, and the NLRB order is enforced in its entirety, where: 1) the collective bargaining agreement allowed petitioner to make changes in its employee work practices and to control the use of company property; but 2) those provisions did not clearly and unmistakably allow the petitioner to forgo any negotiation with the Union over the effects of the Vehicle Policy Change, nor did they clearly and unmistakably waive the Union's right to bargain over the effects of the Vehicle Policy Change; and 3) the NLRB did not abuse its considerable discretion in granting the modified Transmarine remedy awarding back pay to the affected employees for the lost value of no longer being able to use company vehicles after work.

In plaintiff's suit against its former employee for unauthorized access and misuse of a computer system and misappropriation of trade secrets in violation of Connecticut laws, district court's dismissal of the complaint for lack of personal jurisdiction is reversed and remanded where the foreign defendant's use of a computer in Connecticut satisfied the jurisdictional requirement of both the Connecticut long-arm statute and due process.

In action against employer and supervisor alleging discrimination based on national origin and race, and retaliation, summary judgment for defendants is: 1) vacated where genuine issues of material fact exist as to plaintiff Rivera's hostile work environment claims; 2) vacated were genuine issues of material fact exist as to all of plaintiff Talton's claims; and 3) affirmed as to summary judgment for defendants on Rivera's remaining claims, including his claims of retaliation.

In 1983 action against defendant town and officials alleging deprivation of procedural due process and free speech rights when plaintiff' position was reduced from full to part time and not reappointed as the town's Building Official after he made statements regarding the use of wood-burning stoves, judgment for plaintiff is reversed and remanded, where: 1) defendant Black was entitled to qualified immunity as to plaintiff's procedural due process claim, because plaintiff did not adequately allege that he had a constitutionally protected property right in full-time employment; and 2) defendant officials were entitled to qualified immunity as to plaintiff's claim under the First Amendment, because plaintiff did not adequately allege that he spoke in his capacity as a private citizen.

In 1983 action alleging a violation of a constitutional right to access to the courts based on a state governmental official's purported concealment of relevant facts in the course of a prior civil employment-related suit, summary judgment for defendant is affirmed, where: 1) even assuming that so-called "backward looking" right-of-access claims are viable in this Circuit, such claims cannot proceed if the plaintiff, asserting that the government concealed or manipulated relevant facts, was aware of the key facts at issue at the time of the earlier lawsuit; and 2) district court's opinion in the prior suit demonstrates that the court did not rely on statements or omissions in defendant's report, and therefore plaintiff has not shown that defendant's purported actions caused a violation of his rights.

In appeal from summary judgment dismissing plaintiff's claims under the American with Disabilities Act and the Rehabilitation Act, judgment is affirmed because plaintiff failed to present sufficient evidence below to raise a genuine issue of fact as to whether he was discriminated against because of his disability, where: 1) plaintiff's sexual harassment of female employees rendered him unqualified to perform an essential function of his job; 2) his inappropriate behavior is indisputably a legitimate non-discriminatory reason for dismissing him from the volunteer program, even if the behavior resulted from his disability; and 3) plaintiff has not met his burden of showing that the proposed accommodations are plausible and they are unreasonable on their face, as a matter of law.

In appeal from plaintiff's damage award of various employee benefit funds, $26,328.11 in unpaid contributions owed by defendant pursuant to ERISA, liquidated damages, and costs, judgment is affirmed where the district court did not err in using the method of calculating damages set out in the collective bargaining agreement, because parties are free to agree to an alternate method of calculating damages when an employer fails to provide relevant records, without offending the requirement that damages be proven with reasonable certainty.

In appeals heard in tandem from awards of summary judgment in favor of defendant Starbucks Corp. against a) putative class of baristas in Case 10-4912 holding that N.Y. Labor Law section 196-d did not prohibit distributing pooled tips to shift supervisors who were not deemed "agents" under the statute, and b) putative class of Assistant Store Managers (ASMs) in Case 11-3199 holding that section 196-d did not require including ASMs in its tips pools, the Court defers decision and certifies the questions of: 1) the meaning of the word "agents" under the N.Y. statute, 2) whether Department of Labor's New York State Hospitality Wage Order applies, and if so, does it apply retroactively; and 3) whether an employer may exclude an otherwise eligible tip-earning employee from receiving distributions from a common tip pool under N.Y. labor law.

In a motion by the EEOC to amend the judgment to impose injunctive relief following a jury verdict against defendant for sexual harassment and fostering a sexually hostile work environment, judgment denying said injunctive relief is vacated and remanded where: 1) the district court was obliged to craft injunctive relief sufficient to prevent further violations of Title VII of the Civil Rights Act by the individual who directly perpetrated the egregious sexual harassment at issue in this case; and 2) it was an abuse of discretion not to do so.

In a school district employee's suit wrongful termination, claiming in relevant part that her termination was a violation of her First Amendment rights because she reported financial malfeasance to the school district's superintendent and to the Board of Education, district court's denial of defendants' motion for summary judgment is reversed where plaintiff's speech was not protected by the First Amendment because she was speaking pursuant to her official duties as a public employee, and therefore defendant is entitled to summary judgment on the First Amendment retaliation claim.

In plaintiffs' suit brought pursuant to the Freedom of Information Act, against the Office of Personnel Management for withholding from disclosure the names and duty-station information of over 800,000 federal employees, the judgment of the district court is: 1) affirmed in part where the district court properly held that Exemption 6 permits defendant to withhold the names of employees working in the sensitive agencies and sensitive occupations; and 2) reversed in part where the district court erred in holding that some of the duty-station information could be withheld, as defendant has demonstrated that employees possess a cognizable privacy interest in their duty-station records de-linked from their names, and this interest clearly outweighs the public interest that might be served by disclosure.

District court's holding that defendant improperly made income tax, Federal Insurance Contributions Act tax and other deductions from a Title VII judgment for back and front pay in favor of plaintiff, in plaintiff's wrongful termination suit, is reversed in part and remanded, as payments pursuant to Title VII judgments for back and front pay are "wages" as defined under the Internal Revenue Code and, as such, employers are required to withhold income and Federal Insurance Contributions Act taxes. However, district court's judgment with respect to the state's re-payment to plaintiff of amounts withheld for retirement contributions and union dues, as well as the court's award of attorney's fees is affirmed.

In an ERISA action against present and former trustees and plan managers of plaintiffs' pension funds for breach of fiduciary duty, the judgment of the district court is affirmed in part, vacated in part, and remanded where: 1) dismissal of the Counts I-V was proper because the trustees were not acting as fiduciaries in amending the plan, as there are ample justification to deem that the Supreme Court's opinions in Curtiss-Wright, Lockheed, and Hughes Aircraft have abrogated Chambless and Siskind with respect to multi-employer plans; 2) dismissal of Counts VII-IX is vacated as issues of fact remain; and 3) the district court properly denied the motion to amend following its denial of the motion for reconsideration.

In a suit brought by trustees of a pension plan against an employer, claiming that the Pension Protection Act of 2006 prevented the employer from withdrawing from the pension plan after the plan entered critical status, district court's grant of employer's motion for summary judgment is affirmed, as in enacting the PPA, Congress did not intend to prevent employers from withdrawing from multiemployer pension plans in critical status.

In a former high school teacher's suit against a school district, alleging that he was unlawfully denied tenure in retaliation for having taken protected leave pursuant to the Family Medical Leave Act (FMLA), district court's judgment in favor of the school district is reversed and remanded where: 1) plaintiff has presented a genuine issue of material fact as to whether he worked enough hours to be eligible for FMLA leave; 2) the standard governing review of allegedly unlawful university tenure denials is inapplicable to such denial in public high schools; and 3) plaintiff has presented enough evidence of FMLA retaliation to survive a motion for summary judgment.

In a suit for age discrimination and retaliation against a school district, district court's judgment in favor of the school district is affirmed, as plaintiff was not entitled to judgment as a matter of law because elements of her prima facie case for both age discrimination and retaliation were disputed, and the school district satisfied its burden of production under the second step of McDonnell Douglas framework.

In plaintiff's suit for retaliation against his former employer and certain employees under 42 U.S.C. section 1983, district court's grant of summary judgment in favor of the defendants is affirmed, as plaintiff has not sustained his burden of creating a genuine issue of fact as to whether his mistreatment was the result of his lack of political allegiance to the new administration, and even if plaintiff has identified speech that touches on a matter of public concern, he has failed to show an adverse employment action or a causal connection between the speech and employment conditions that he deems adverse.

In a Title VII suit against the City of Buffalo (City) claiming race discrimination in the administration of the 1998 and 2002 promotional examinations for the position of fire lieutenant, district court's judgment in favor of the defendants is affirmed where: 1) on plaintiffs' disparate impact challenge to the 1998 examination, the district court did not clearly err in finding that the defendant carried its burden to demonstrate that the examination's job relatedness by showing that the test derived from a valid statewide job analysis indicating the fire lieutenants across New York performed the same critical tasks required the same critical skills and in finding that the Civil Service Department exercised reasonable competence in designing the examination and that the examination was both content related and representative; 2) on plaintiffs' disparate treatment challenge, the district court correctly concluded that plaintiffs could not re-litigate questions of job relatedness and business necessity decided against them at the bench trial of their disparate impact claims and that plaintiffs had not established a genuine material of fact that the City intentionally discriminated against African Americans by using the 1998 test results; and 3) on plaintiffs' Title VII challenge to the 2002 examination, the district court correctly relied on collateral estoppel to grant summary judgment in favor of the City because the only matters in dispute had been resolved in the earlier challenge to the 1998 examination and there was sufficient identity between the plaintiffs in both suits.

In plaintiff's suit against his former employer, a tugboat operator, seeking maintenance and cure for contracting lymphoma while working as a seaman for the defendant, the district court erred in granting summary judgment for the defendant in concluding that the disease did not "manifest" itself during the plaintiff's service, as plaintiff's illness indisputably occurred during his service and thus, he is entitled to maintenance and cure regardless of when he began to show symptoms.

In a suit brought by "captains" of wholesale food warehouses, for unpaid overtime wages, liquidated damages and attorneys' fees and costs, under the Fair Labor Standards Act (FLSA) and an analogous section of New York Labor Law (NYLL), the District Court's grant of summary judgment for defendants on all claims on the ground that plaintiffs are "executives" exempt from the overtime pay provisions of the FLSA and NYLL is affirmed, as the summary judgment record allows for no conclusion other than that each team of employees supervised by plaintiffs is a customarily recognized subdivision of defendants' company with a permanent status and function, and plaintiffs therefore qualify as "executives" as that term is defined by Department of Labor regulations and are exempt from the overtime-pay protections of the FLSA and NYLL.

In a suit brought by a group of Asian Americans currently or formerly employed as police officers by the Port Authority under Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e et seq., alleging that they were passed over for promotions because of their race, the District Court's judgment is: 1) affirmed in part where the district court properly admitted background evidence predating the onset of the limitations period and that there was sufficient evidence for a reasonable juror to conclude that the Port Authority discriminated against the seven prevailing plaintiffs within the limitations period; and 2) vacated in part where district court erred in a) submitting the pattern-or-practice disparate treatment theory to the jury in this private, nonclass action, b) concluding that the "continuing violation" doctrine applied to the plaintiffs' disparate impact theory so that the jury could award back pay and compensatory damages for harms predating the onset of the statute of limitations

In a case alleging various unfair labor practices on the part of an employer, its cross-petition for review of the NLRB's affirmance of an ALJ decision is granted insofar as the NLRB concluded that: 1) the employer's policy of allowing employees to wear only one union button violated section 8(a)(1) of the National Labor Relations Act; and 2) the discharge of two employees violated section 8(a)(3) of the Act, with remand necessary as to one employee for determination of whether an employee's outburst in which obscenities are used in the presence of customers loses otherwise available protection if the employee is off duty although on the employer's premises.

The judgment of the district court is vacated to the extent that it dismissed the plaintiff's hostile work environment claim of sexual harassment, and the matter is remanded for further proceedings on that claim, where: 1) a factfinder crediting the plaintiff's version of the events could permissibly infer that a female supervisor's repeated touching of the plaintiff's breasts constituted discrimination against Redd because of her sex in violation of Title VII; and 2) to the extent that an affirmative defense relieving the defendant employer from liability for the actions of it employee was available, the record suggested that there were factual issues to be tried.

In a suit by a former police officer against the city that employed him and certain police officers, alleging racial discrimination and disparate treatment in his suspension and ultimate firing, summary judgment in favor of the defendants on all claims is affirmed, where: 1) the law of the case doctrine did not preclude summary judgment, as nothing in the Second Circuit's previous opinion in the case controlled the district court's rulings being appealed; 2) the suspension without pay pending an investigation into the plaintiff's criminal conduct was not an adverse employment action under the circumstances; and 3) the plaintiff had no constitutionally recognized cause of action for deprivation of "professional courtesy" that police sometimes extend to their fellow officers.

In an employee's suit against his employer for breach of contract with respect to pension benefits: 1) the district court's denial of the plaintiff's motion to remand the case to state court is affirmed, because the claims were preempted by ERISA, the suit had been properly removed to federal court, and the district court had federal jurisdiction over the case; and 2) the district court's dismissal of the action for failure to state a claim is affirmed, where the plaintiff conceded his employer's authority to amend the pension plan in the way that affected his benefits.

In a case alleging illegal retaliation against a city police officer under Title VII and the New York State Human Rights Law (HRL) because of her complaints of gender discrimination, the district court's judgment is: 1) affirmed in part where the city's arguments regarding the availability of reputation damages, evidentiary and instructional errors, and excessive damages for emotional distress presented no basis for disturbing the judgment; and 2) vacated in part where there was merit in plaintiff's contentions regarding the liability of the city's corporation counsel, and the district court erred in dismissing her principal gender discrimination claims under the HRL on the basis that she had suffered no materially adverse employment action.

United States Second Circuit, 01/06/2012
NLRB v. County Waste of Ulster, LLC, No. 10-3359
In a National Labor Relations Board administrative proceeding charging that an employer violated section 8(a)(2) of the National Labor Relations Act by allowing a union to distribute a bonus to its employees when an election was pending, judgment by a panel of the Board finding a violation is affirmed, where: 1) the Board's review of the case was adequate; and 2) two members of the panel, who had entered a decision that was vacated and remanded pursuant to the US Supreme Court's decision in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010), which forbids a two-member panel of the Board to decide a case when the Board itself consists only of two members, properly participated in the panel that reviewed the case on remand.

District court judgment dismissing the plaintiff's disability discrimination claim against her former employer under the Americans with Disabilities Act as untimely is affirmed where the plaintiff did not comply with the Act's requirement that a claim be filed within 90 days of the claimant's receipt of a right-to-sue letter from the EEOC. Although the plaintiff may have filed her claim within 90 days of her counsel's receipt of the letter, the limitations period begins to run on the date that the letter is first received either by the claimant or by counsel, whichever is earlier

In a Section 1983 suit brought by a public school special education teacher against a school district, the school's principal and the superintendent of schools, summary judgment in favor of defendants is vacated and case remanded where: 1) teacher made a prima facie showing that retaliation in violation of the First Amendment free speech guarantee caused her to be denied tenure; 2) rebuttal by appellees was subject to credibility questions that could not be resolved as a matter of law; 3) principal and superintendent of schools were not entitled to qualified immunity; and 4) "cat's paw" theory of district's Section 1983 liability required District Court hearing.

In an appeal from a judgment of the district court arising from a class complaint under ERISA, judgment is affirmed where the court correctly awarded summary judgment to the lead-plaintiff on his individual claims for miscalculation of benefits, but reversed where the court erred in certifying the class and granting certain class judgments because the six-year statute of limitations began to run when each pensioner knew or should have known that the defendants had miscalculated the amount of his pension benefits such that some of the plaintiffs' claim may be stale.

In a dispute involving a disparate-impact challenge to defendant's promotion practices and where the plaintiff, an African-American firefighter for the City of New Haven, alleges that the firefighter promotion exams challenged in Ricci were arbitrarily weighted thus yielding an impermissible disparate impact, judgment of the district court is reversed where the court erred in dismissing the claim as necessarily foreclosed by Ricci

In a dispute alleging denial of overtime pay in violation of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. section 201 et seq., judgment of the district court in favor of defendant, and on deference to the Secretary of Labor's interpretation of her own regulations, is reversed where the professional duty of plaintiffs, Police Department sergeants, is not management and thus does not qualify them for the bona fide executive exemption from the overtime pay requirements of the FLSA.

In a dispute arising from a Title VII and state law action alleging disparate treatment and a hostile work environment, 42 U.S.C. sections 2000e-17 and N.Y. Exec. Law sections 290-301, judgment of the district court is affirmed where the court properly held that the plaintiff abandoned her state law claims, but reversed where the court, without holding a separate inquest into backpay and without submitting the issue to the jury, improperly denied plaintiff's claim to backpay on the ground that the magnitude of the jury's award ensures that plaintiff will be made whole for her injuries, including for any lost wages, and for any pain, suffering, or emotional distress

In a labor and employment dispute concerning a claim of age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. section 621 et seq., and state law, judgment of the district court dismissing complaint is affirmed on the basis of a separation agreement entered into by the parties in connection with the termination of plaintiff\'s employment, in which plaintiff agreed to waive and release all claims, including claims under the ADEA.

In a dispute involving the scope of the Carey rule as applied to the award of attorney's fees and arising from the Fair Labor Standards Act's fee shifting provision, 29 U.S.C. section 216(b), judgment of the district court is reversed because a district court's personal observation of an attorney's work is not by itself a sufficient basis for permitting a deviation and awarding fees in the absence of contemporaneous records

In a dispute involving the application of an arbitration provision contained in an expired collective-bargaining agreement, summary judgment in favor of plaintiff is affirmed where the contractual right to checkoff of union dues survives expiration of the agreement, thus subjecting the parties' dispute to arbitration.

Because this petition was filed more than eighteen months after Rule 23(f)'s deadline for interlocutory appeals, it is dismissed on the ground that petitioners have not filed a timely petition with respect to an order reviewable pursuant to Rule 23(f).

The district court's grant of summary judgment for B &amp; D on the commute time claims is affirmed, the grant of summary judgment for B &amp; D on the off-the-clock claims is vacated, and the case is remanded for further proceedings consistent with this opinion.

In an appeal from the district court's order awarding plaintiff's counsel attorney's fees pursuant to section 216(b) of the Fair Labor Standards Act, the order is vacated where, because the district court did not explain the basis on which counsel was excepted from the requirement that attorneys submit contemporaneous time records with their fee applications, the court was unable to divine whether the district court abused its discretion in granting such an exception.

In an action claiming that plaintiff nurse was compelled by her supervisors to participate in a late-term abortion, suffering serious emotional harm as a result, summary judgment for defendant is affirmed where there was no evidence that Congress intended to create a right of action under 42 U.S.C. section 300a-7(c).

In an action alleging that plaintiff was subjected to adverse employment actions in violation of the First Amendment because of her refusal to assist the defendants in gathering adverse information about a Family Court judge to aid their efforts to prevent the judge's election to a higher judicial office, a denial of summary judgment based on qualified immunity is affirmed where neither the defense of qualified immunity nor defendant's alleged status as a policymaker had been established as a matter of law at this stage of the litigation.

In an action asserting claims against Hertz Rental Car for overtime violations of the Fair Labor Standards Act, and various provisions of New York state law, a denial of class certification is affirmed where the district court did not abuse its discretion in concluding that Hertz's common policy demonstrated little regarding whether the constituent issues that bore on Hertz's ultimate liability were provable in common.

In an action claiming that defendants unconstitutionally retaliated against plaintiff for his exercise of his right to free speech in violation of the First Amendment and violated his right to due process under the Fourteenth Amendment when they removed him from his position as dean, a denial of summary judgment based on qualified immunity is reversed where plaintiff had no clearly established right to remain as dean while voicing opposition to the policies of the team he was hired to be part of.

In an action for racial discrimination and retaliation in violation of Title VII, judgment for defendants is affirmed in part where, although a reasonable juror could certainly have considered certain remarks by plaintiff's colleagues discriminatory, they have little probative value in the context of the case. However, the judgment is vacated in part where the district court's instruction on causation was erroneous because a causal connection was sufficiently demonstrated if the agent who decides to impose the adverse action but is ignorant of the plaintiff's protected activity acts pursuant to encouragement by a superior (who has knowledge) to disfavor the plaintiff.

In an action by pharmaceutical company salespersons for overtime pay under the Fair Labor Standards Act (FLSA), summary judgment for defendant is vacated where, under the Department of Labor's regulations, the salespersons were not outside salesmen or administrative employees for purposes of the FLSA.

In an action alleging racial discrimination by a city fire department, summary judgment for defendants is vacated where the record did not establish as a matter of law that the city's continued reliance on racial considerations in the hiring of firefighters was justified by a prior consent decree.

In a sexual harassment action, following the New York Court of Appeals\' answer to a certified question, a denial of summary judgment to defendant is affirmed where the affirmative defense to employer liability articulated in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), does not apply to sexual harassment and retaliation claims under section 8-107 of the New York City Administrative Code.

In an action claiming that defendants violated the anti-retaliation provision of the Americans with Disabilities Act (ADA) and related state laws by terminating plaintiffs as karate instructors, summary judgment for defendants is affirmed in part where: 1) the district court properly concluded that there is no individual liability for retaliation claims brought under the ADA; and 2) the district court correctly determined that plaintiffs failed to state a claim under the New York State Human Rights Law (NYSHRL). However, the judgment is vacated in part where the district court needed to consider in the first instance whether obesity was a disability under the New York City Human Rights Law (NYCHRL).

In an action alleging discrimination on account of a medical disability, summary judgment for defendant is vacated where plaintiff's statements on his job application did not judicially estop him from bringing his Americans with Disabilities Act claim because those statements did not contradict plaintiff's position on the critical issue of whether he was able to fulfill the essential functions of his employment with reasonable accommodation

In an employment discrimination action, the dismissal of the complaint based on the res judicata effect of a prior state administrative proceeding is vacated where the state court's dismissal was not a decision on the merits that would preclude the filing of a renewed state court action.

In an action alleging sex discrimination and failure to pay overtime wages, summary judgment for defendants is vacated in part and the matter is remanded where, because plaintiff's primary duty was the sale of advertising space, she was properly considered a "salesperson" for the purposes of the Fair Labor Standards Act (FLSA) and therefore did not fall under the administrative exemption to the overtime pay provisions of the FLSA.

In a sex discrimination action claiming that defendant-supervisor should have prevented the harassment of plaintiff taking place, summary judgment for defendants is affirmed in part where: 1) plaintiff was not deprived of all reasonable avenues of complaint; and 2) defendants could not be liable based on information that plaintiff requested be kept confidential but which was conveyed to a co-worker. However, the order is reversed in part where a reasonable jury could conclude that the employer defendants: 1) knew, or in the exercise of reasonable care, should have known, of the harassment directed at plaintiff; and 2) failed to take appropriate remedial action.

In the EEOC&prime;s appeal from a denial of its petition to enforce an administrative subpoena issued to UPS seeking information about how religious exemptions to UPS&prime;s Uniform and Personal Appearance Guidelines were handled nationwide, the order is reversed where the district court, in finding that national information was not relevant to the charges being investigated by the EEOC, applied too restrictive a standard of relevance.

In a First Amendment action claiming that the CIA was required to allow former employee Valerie Plame Wilson to publish a memoir about her tenure at the agency, summary judgment for defendants is affirmed where: 1) plaintiff, and not the agency, permitted the classified information at issue to be revealed to the public; and 2) further, the public disclosure did not deprive the information of classified status, and the agency demonstrated good reason for adhering to its classification decision. A former CIA agent cannot use her own unauthorized disclosure of classified information to challenge the CIA's ability to maintain the information as classified.

In a gender and age discrimination action by an employee of a university, summary judgment for defendants is affirmed in part where plaintiff failed to produce evidence of an express or implied contract to continue her employment. However, the order is reversed in part where: 1) in the circumstances here, a non-renewal of an employment contract itself was an adverse employment action and the district court erred in requiring plaintiff to show the existence of an unofficial tenured position to satisfy the adverse action requirement; and 2) the circumstances surrounding the non-renewal of her contract gave rise to an inference of age or gender discrimination.

In a First Amendment action alleging that a professor's union impermissibly charged plaintiff a pro rata share of expenses unrelated to the union's collective bargaining duties, summary judgment for defendant is reversed where: 1) a public-sector union's political activities aimed at securing a new contract may be chargeable to nonmembers if those activities are pertinent to the union's role as a collective bargaining representative; 2) nonmembers may be required to subsidize lobbying efforts undertaken by a "parent" union of the local public-sector union if the lobbying is related to collective bargaining and may ultimately inure to the benefit of local union members; 3) the district court erred in upholding the union's charges to nonmembers for (a) political activity undertaken to secure a new contract, (b) lobbying by the local union's state affiliate, (c) costs incurred to send union delegates to the state affiliate's annual convention, and (d) the salaries of the union'! s employees; 4) the district court erred in dismissing plaintiff's challenge to the union's charges for media communications by its national affiliate; and 5) it erred in holding, sua sponte, that plaintiff will be required to arbitrate future claims against the union before filing suit.

In an Age Discrimination in Employment Act action regarding a statement by a third party retained by defendant that plaintiff was too old for the position at issue, summary judgment for defendant is reversed where an employer may be held liable for discrimination by third parties, including independent contractors, that the employer authorizes to make hiring decisions on its behalf.

In an action by a public employee claiming that defendants retaliated against him in violation of the First Amendment for reporting workplace violence, summary judgment for defendants is vacated where the speaker's motive is not dispositive of whether the speech is on a matter of public concern.

In a dispute involving attorney's fees, district court judgment is vacated and remanded where the court erred in awarding attorney's fees to plaintiff's based on the prevailing hourly rates in the district where her counsel was based, rather than where the suit was litigated, as plaintiff did not satisfy the exception to the forum rule for attorney's fees.

Third Circuit

Appeals from federal district (trial level) courts in Delaware, New Jersey, Pennsylvania, and Virgin Islands

Held that the bankruptcy court correctly disallowed a claim brought by the debtor's former employee. A former television station employee argued that the station, whose owner was now in bankruptcy, was liable for unlawful racial discrimination. Affirming summary judgment against his claim, the Third Circuit concluded that he failed to raise a triable issue and, further, that it was too late for him to challenge the bankruptcy court&rsquo;s jurisdiction to hear his discrimination claim, since he never objected to this during bankruptcy proceedings.

Held that a pastor could not sue his church for breach of an employment contract. The church contended that adjudication of the pastor's contract claim would impermissibly entangle the court in religious doctrine in violation of the First Amendment's Establishment Clause. Agreeing, the Third Circuit affirmed summary judgment in favor of the church.

Affirming the district court grant of summary judgment to a hospital in a case where a former employee failed to establish a prima facie case for retaliation under the Emergency Medical Treatment and Active Labor Act when she says she was fired because she reported the hospital's allegedly improper discharge of an unstable patient and because she reported alleged substandard care of an admitted patient. She lacked any direct evidence and her various common law claims were preempted by state statutes.

Affirming that a jury instruction relating to False Claims Act claims of retaliation requiring that protected activity be the 'but for' cause of adverse actions against the plaintiff whistleblower in a case involving a former Director of Marketing who said that her concerns about off-label drug use marketing strategies led to her constructive dismissal.

Affirming the district court's holding that a man who sought to recover benefit plans under the Employee Retirement Income Security Act could not obtain relief because he sought benefits under a 'top-hat plan,' a kind of deferred compensation that is unfunded and maintained by an employer for key management or highly compensated employees, because such funds need not comply with many of the substantive provisions of ERISA and the defendant need not prove that plan participants had bargaining power in order to establish that the benefits were part of a top-hat plan.

In a labor law action, arising from defendant's failure to pay its workers for short rest breaks, the court held that the Fair Labor Standards Act requires employers to compensate employees for all rest breaks of twenty minutes or less.

Vacating and remanding a case in which a substitute janitor sued for sexual harassment and retaliation and the district court granted summary judgment to the Atlantic City Board of Education because the alleged harasser was not the former employee's direct supervisor, but he was empowered to determine a number of aspects of her work, his decisions had an impact on her pay, and there was nobody else on the record that provided supervision, resulting in the reversal of the district court's ruling.

Reversing the pre-discovery dismissal of a wrongful termination claim filed by an in-house patent attorney against their former employer, L'Oreal, alleging that he was terminated for his refusal to violate ethical rules on their behalf because, as the court put it, his allegations were more than skin-deep.

Reversing and remanding a case involving contract workers fired by a staffing placement agency who alleged racial discrimination and cited various examples including remarks made at the workplace and unfair work treatment, clarifying that the standard for determining harassment is 'severe or pervasive' rather than the 'severe and pervasive' standard applied by the lower court.

In a suit claiming that the Port Authority discriminated against plaintiff in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. section 621 et seq. (ADEA), and the Americans with Disabilities Act of 1990, 42 U.S.C. section 12101 et seq. (ADA), and retaliated against him for exercising his right to take leave under the Family and Medical Leave Act of 1993, 29 U.S.C. section 2601 et seq. (FMLA), the district court's judgment entering the jury's finding that he was not the victim of discrimination or retaliation is: 1) vacated in part where the district court erred in requiring plaintiff to provide direct evidence of retaliation; and 2) affirmed in part where the district court within its discretion in excluding the testimony of plaintiff's coworker.

In a Title VII retaliation action against plaintiff's former employer, a university, the district court's grant of summary judgment to defendant is: 1) reversed as to the contract revision claim where at the prima facie stage, a plaintiff need only proffer evidence sufficient to raise the inference that her engagement in a protected activity was the likely reason for the adverse employment action, not the but-for reason; but 2) affirmed in all other respects.

In response to a certified question arising in a failure-to-promote discrimination suit under the Uniformed Services Employment and Reemployment Rights Act (USERRA) 38 U.S.C. section 4301, the court holds that plaintiffs need not plead or prove that they are objectively qualified in order to meet their initial burden under USERRA. Instead, employers may raise a plaintiff's lack of qualifications as a non-discriminatory justification for declining to promote the plaintiff, notwithstanding his or her military service.

In a putative collective action and class action brought under the Fair Labor Standards Act (FLSA) against DuPont, seeking overtime compensation for time plaintiffs spent donning and doffing their uniforms and protective gear and performing 'shift relief' before and after their regularly-scheduled shifts, the District Court's grant of summary judgment to defendant is reversed where the FLSA and applicable regulations, as well as circuit precedent in Wheeler v. Hampton Twp., 399 F.3d 238 (3d Cir. 2005), compel the opposite result.

In a putative class action employment dispute involving the world&rsquo;s largest commercial cleaning franchisor, classifies its franchisees as independent contractors, brought by two franchisees asserting that they are misclassified and should be treated as employees, the District Court's grant of plaintiffs' motion for class certification is affirmed where the claims in this case are susceptible to class-wide determination and the District Court did not abuse its discretion by certifying the class.

In a labor action alleging a collective bargaining agreement (CBA) obligated employer-defendant to make employee benefit contributions and submit to audits pursuant to a separate 'me-too' agreement between defendant and the plaintiffs, the District Court's dismissal of plaintiffs' claims pursuant to Federal Rule of Civil Procedure 12(b)(6) is reversed where the complaint adequately pleads with specificity and satisfies the demanding requirement of plausibility, and thus survives a 12(b)(6) motion to dismiss.

In a challenge to a City law that conditions certain tax exemptions and abatements to private developers of projects in certain designated areas on the developers' entry into agreements with labor unions that bind the developers to specified labor practices, the District Court's dismissal of the complaint -- on grounds that the City acts as a market participant, not a regulator, when it enforces the law, and therefore that plaintiffs' NLRA, ERISA, and dormant Commerce Clause claims were not cognizable -- is reversed where the City was acting as a regulator in this context, and thus the claims are cognizable.

In an action filed by overseas workers of defendant Dole Food Company, seeking relief for long-term health consequences allegedly tied to work-related exposure to toxic pesticides, the district court's dismissal is vacated and remanded where: 1) the district court abused its discretion under the first-filed rule by dismissing plaintiff's claims with prejudice; 2) the district court erred by refusing to transfer plaintiffs' claims against defendant Chiquita Brands International to another forum; and 3) dismissals on timeliness grounds in a mirror suit filed in Louisiana District Court do not create a res judicata bar to plaintiff's claims.

In an employer's appeal of a stipulated judgment requiring them to pay plaintiffs overtime, the District Court's judgment is affirmed where the District Court correctly determined that defendants have not met their burden to show that the Motor Carrier Act (MCA) exemption to the overtime provisions in the Fair Labor Standards Act (FLSA) and Pennsylvania Minimum Wage Act (PMWA) applies, 29 U.S.C. section 207(a)(1), 43 Pa. Cons. Stat. Ann. section 333.104(c).f

In a petition action for review of an order of the National Labor Relations Board (NLRB) which held that petitioner violated sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act (NLRA), by refusing to bargain collectively with the representatives of its employees in violation of 29 U.S.C. section 158(a)(5), the petition for review is denied where: 1) petitioner did not lose the ability to challenge Director Walsh's authority by failing to raise this issue during the representation proceeding, nor did the Stipulated Election Agreement constitute an implied accession to Director Walsh's authority; 2) Director Walsh and the Board both properly ratified their previously unauthorized actions; and 3) substantial evidence supports the Board's determination and the Hearing Officer's findings.

In a class action suit against the National Football League (NFL), brought by former players who alleged that the NFL failed to inform them of and protect them from the risks of concussions in football, the District Court's judgment is affirmed where the District Court was right to certify the class and approve the settlement.

In an arbitration action arising from a collective bargaining dispute, the district court's denial of a petition to vacate an arbitration award is affirmed in part and reversed in part where: 1) the parties consented to a multi-year arbitration award; but 2) a provision authorizing a new round of arbitration violates both the Federal Arbitration Act and the National Labor Relations Act and should be severed.

In an age discrimination action, the district court's grant of summary judgment to defendant-employer is affirmed where: 1) plaintiff did not produce sufficient evidence to raise an inference that defendant treated similarly situated, substantially younger employees more favorably; and 2) plaintiff did not produce enough evidence to establish the necessary pretext for her case to survive summary judgment.

In an ERISA dispute between a grocer and union about the amount the grocer to be paid annually after withdrawing from the pension fund in 2011, the district court's order regarding the payments is affirmed where: 1) Congress did not intend that a withdrawing employer should pay only the amounts that would ordinarily be due under the pension plan; and 2) the surcharge does not arise under the collective bargaining agreements (CBA) and the surcharge is not part of the "Highest Contribution Rate."

In an ERISA dispute between a grocer and union about the amount the grocer to be paid annually after withdrawing from the pension fund in 2011, the district court's order regarding the payments is affirmed where: 1) Congress did not intend that a withdrawing employer should pay only the amounts that would ordinarily be due under the pension plan; and 2) the surcharge does not arise under the collective bargaining agreements (CBA) and the surcharge is not part of the "Highest Contribution Rate."

In a case brought against plaintiffs' former employers, alleging claims under the First and Fourteenth Amendments and 42 U.S.C. section 1983, the district court's dismissal for failure to state a claim because the employer is not a government entity, is reversed in part, where under the analysis in Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995), defendant is a governmental entity and is therefore subject to claims under the US Constitution and section 1983.

In an action against plaintiff's former employer alleging violations of the Family Medical Leave Act of 1993 (FMLA), 29 U,S,C, section 2601 et seq., the district court's dismissal of the complaint, on the basis that the medical certification supporting plaintiff's request for leave was "invalid," is reversed and remanded where by alleging that employer terminated her instead of affording her a chance to cure any deficiencies in her medical certification, plaintiff has stated a claim that employer violated the Medical Leave Act.

In a case brought by a former employee who took leave under the Family Medical Leave Act of 1993 (FMLA), 29 U.S.C. section 2601, and was terminated without her employer seeking any clarification about her medical certification, the District Court's dismissal of the complaint is reversed where in failing to afford plaintiff a chance to cure any deficiencies in her medical certification, the employer violated the Medical Leave Act.

In an appeal of the NLRB's ruling that petitioner committed unfair labor practices, in violation of the NLRA, before and after a Union election, the Board's rulings are: 1) affirmed with regard to the Board's determination that plaintiff violated section 8(a)(1) by coercively interrogating at least one of its employees and by creating an unlawful impression of surveillance; and 2) vacated insofar as the order concluded that plaintiff's withholding of benefits from unit employees violated section 8(a)(1) and (a)(3).

In 1999, defendant Allstate decided to reorganize its business and terminate the at-will employment contracts of some 6,200 sales agents, offering them the opportunity to work as independent contractors. As a condition of becoming independent contractors, agents were required to sign a release waiving existing legal claims against Allstate. Plaintiff brought suit against Allstate, alleging that the company violated federal antiretaliation laws. Summary judgment entered in favor of Allstate is affirmed, where: 1) in offering each of its employee agents the Conversion Option, Allstate followed the well-established rule that employers can require terminated employees to waive existing legal claims in order to receive unearned post-termination benefits; and 2) plaintiff has neither given reason to craft an exception to this rule nor articulated a valid retaliation claim under the relevant statutes.

In this case brought under the Fair Labor Standards Act for unpaid overtime, plaintiff-driver, a former employee for defendant, asserts that she was not paid overtime rates despite having been paid by the hour and working more than 40 hours in a given week. The judgment of the district court finding that plaintiff was entitled to overtime is affirmed, where: 1) a recent Act of Congress waives the Motor Carrier Act overtime exemption for motor carrier employees who, in whole or in part, drive vehicles weighing less than 10,000 pounds; and 2) plaintiff spent 51% of her total days working on vehicles rated heavier than 10,000 pounds, and thus, she falls within the recent Congressional carveout.

In this case involving First Amendment retaliation, plaintiff alleges that he was denied reappointment to his position as Roadmaster with the Township as a result of speech he expressed in his capacity as an elected official concerning the Board of Supervisors' overpayment for administrative duties. Defendants filed a motion to dismiss on grounds that they were entitled to qualified immunity as to plaintiff's federal claim against them. The judgment of the district court denying defendants' motion to dismiss and finding that plaintiff had established a constitutional violation is vacated and remanded, where: 1) well-reasoned decisions on both sides render the law sufficiently unclear at the time of defendants' actions so as to shield them from liability; 2) the law was not clearly established that the kind of retaliation defendants engaged in against plaintiff violated his First Amendment rights; 3) elected officials who are retaliated against by their peers have limited recourse under the First Amendment when the actions taken against them do not interfere with the ability to perform their elected duties; and 4) it is debatable whether a reasonable official in defendants' position would have under that retaliating against plaintiff by denying him reappointment would violate his constitutional rights.

In this case, appellant Union challenges the district court's order denying its motion for relief from judgment under Federal Rules of Civil Procedure rule 60(b)(5), arguing that the court mistakenly classified appellee Knight as a prevailing party and wrongly awarded him attorneys fees, including costs and post-judgment fees. In the underlying case involving due process and free speech claims brought by Knight, the district court found in favor of Knight, deciding that the Union violated Knight's due process rights. The judgment of the district court awarding Knight attorney's fees is affirmed, where the district court did not abuse its discretion in based its decision to define Knight as a "prevailing party" on his due process and free speech successes from the first hearing in 2006 rather than his defeat in 2013, as under the common benefit doctrine, the district court was required to make such determination based on the point in time that Knight vindicated his Title I rights in a way that was significant to the union members at-large.

In this case, defendant reorganized its business and terminated the at-will employment contracts of 6200 sales agents, offering them the opportunity to work as independent contractors. As a condition of becoming independent contractors, agents were required to sign a release waiving existing legal claims against defendant. Summary judgment entered in favor of defendant is affirmed, where: 1) in offering each of its employee agents the option to convert into independent contractors, defendant followed the well-established rule that employers can require terminated employees to waive existing legal claims in order to receive unearned post-termination benefits; and 2) defendant did not therefore violate federal antiretaliation laws.

In this case, plaintiff police officer asserts that he was subject to unconstitutional retaliation under the First Amendment when he was demoted after being observed obtaining a local mayoral candidate's campaign sign at the request of his mother. Summary judgment in favor of defendants is affirmed, where: 1) plaintiff has failed to come forward with evidence that he actually exercised his First Amendment rights; and 2) claims of retaliation based only on the perceived exercise of First Amendment rights are foreclosed by Fogarty v. Boles.

In this case, the Administrative Review Board of the United States Department of Labor held that petitioner-railroad violated an anti-retaliation provision (49 U.S.C. section 20109(c)(2)) of the Federal Railroad Safety Act when it suspended one of its employees for excessive absenteeism, on grounds that the provision prohibits railroads from disciplining employees for following order or a treatment plan of a treating physician. Petition challenging the decision and order of the Review Board is granted, and the case is remanded with instructions that the proceedings be dismissed, where the physician's order that the employee was following related to treatment for an off-duty injury, but under section 20109(c)(2), only physicians' orders stemming from on-duty injuries are covered.

Dismissal of plaintiffs' challenge to 20 C.F.R. section 655.10(f), a Department of Labor regulation applicable in the administration of the H-2B visa program that authorizes the admission of certain unskilled foreign workers into this country for temporary employment, is reversed and plaintiffs' vacatur request of section 655.10(f) and the 2009 Wage Guidance (which authorizes employers to use privately-funded wage surveys to set the prevailing market wage for certain occupations) is granted, where: 1) the case is ripe for judicial review; and 2) section 655.10(f) and the 2009 Wage Guidance are arbitrary and capricious and in violation of the Administrative Procedure Act.

In this case, plaintiff was terminated after publicly disclosing the alleged misconduct of defendant Superintendent in steering a prime contract to a minority-owned business. Denial of defendants' motions for summary judgment is affirmed, where: 1) defendant illegally conditioned plaintiff's public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression; and 2) the illegality of defendants' actions was sufficiently clear, so they had fair notice that their retaliation against plaintiff's constitutionally protected speech would not be shielded by qualified immunity.

In this action brought by plaintiff-employee for Family Medical Leave Act (FMLA) interference and retaliation claims, summary judgment in favor of defendant-employer and denial of plaintiff's motion for leave to amend her complaint is: 1) affirmed as to the denial of plaintiff's motion for leave to amend her complaint to add a claim for violation of the Americans with Disabilities Act (ADA), as defendant did not "regard" defendant as having anything other than a broken finger, which renders her proposed amendment futile under the ADA; 2) vacated as to summary judgment on the FMLA interference claim, as genuine issues of material fact existed regarding whether plaintiff could not perform an essential function of her job; and 3) vacated as to summary judgment on the FMLA retaliation claim, as plaintiff adduced enough evidence that a reasonable jury could conclude that she suffered an adverse employment action when she was replaced.

Appeals of district court orders denying final certification of a collective action under the Fair Labor Standards Act by named plaintiffs who dismissed their individual claims but seek to pursue an appeal on behalf of others who opted into the litigation, are dismissed for lack of jurisdiction, where the named plaintiffs lack final orders appealable under 28 U.S.C. section 1291

Dismissal of a class action brought by plaintiff-employees under the Fair Labor Standards Act (FLSA) to recover unpaid wages and overtime compensation for work performed during morning "pre-trip" inspections required before the start of each employees' daily run, is vacated and remanded, where plaintiff-employees' FLSA claim does not require the interpretation of the collective bargaining agreements and therefore is not subject to those agreements' grievance and arbitration provisions.

Petition for review of a decision by the Benefits Review Board of the U.S. Department of Labor (DOL), which confirmed an award of survivors' benefits to a widow of petitioner's former employee under the Black Lung Benefits Act, is denied, where: 1) this case concerns a "subsequent" claim for benefits by a surviving dependent under the recently amended Act; 2) section 932(l) of the Act, as amended, applies to subsequent claims that are filed and pending within the proper temporal thresholds; and 3) res judicata does not preclude a post-amendment award of survivors' benefits on a subsequent claim where the original claim was denied due to the claimant's failure to show that pneumoconiosis substantially contributed to the miner's death.

In an action alleging that regulations promulgated by defendants, which require group health plans and health insurance issuers to provide coverage for contraceptives, violate the Religious Freedom Restoration Act, and the Free Exercise Clause of the First Amendment of the United States Constitution, the district court's denial of plaintiff's request for a preliminary injunction is affirmed, where: 1) a for-profit, secular corporation cannot assert a claim under the Free Exercise Clause; 2) a for-profit, secular corporation cannot engage in the exercise of religion and therefore cannot it cannot assert a claim under the Religious Freedom Restoration Act; 3) the individual owners of plaintiff do not have viable claims because the mandate is imposed on plaintiff; and thus, 4) plaintiff is not entitled to a preliminary injunction

On remand from the U.S. Supreme Court, and upon consideration Chamber of Commerce v. Whiting and Arizona v. US, the court again concludes that both the employment and housing provisions of defendant's ordinances, which prohibit employment of unauthorized aliens and preclude them from renting housing within the city, are pre-empted by federal immigration law, and accordingly, the district court's order enjoining enforcement of these provisions is again affirmed.

Summary judgment for nurses union against plaintiff on a charge of unfair labor practices, and subsequent orders affirming the same, are vacated, where: 1) the Recess of the Senate in the Recess Appointments Clause refers to only intersession breaks, i.e. breaks between sessions of the Senate; and consequently, 2) the NLRB panel below lacked the requisite number of members to exercise the NLRB's authority because one panel member was invalidly appointed during an intrasession break.

Judgment of the district court dismissing plaintiff's claim of religious discrimination in violation of Title VII of the Civil Rights Act, is affirmed, where: 1) the test set forth in Clackamas Gastroenterology Associates, P.C. v. Wells for determining whether a shareholder-director of a professional corporation is an employee for purposes of the American with Disabilities Act is applicable to business entities that are not professional corporations in a Title VII employment action; and 2) the district court did not err in its determination that the allegations in plaintiff's complaint did not establish that he was an employee under Title VII.

Petitioner-company's petition for review of the National Labor Relations Board's (NLRB) decision that petitioner violated provisions of the National Labor Relations Act (NLRA) is denied, and the NLRB's petition for enforcement is granted, where: 1) substantial evidence supported the NLRB's determination that petitioners were a single employer, and thus jointly and severally liable for violations of the NLRA committed by either of them; 2) the NLRB acted consistently with the NLRA in applying the successorship doctrine to find that petitioner had a duty to bargain with Local 1305; and 3) the NLRB's ruling that the petitioner violated the NLRA by refusing to hire five former Laurel Crest employees is supported by substantial evidence.

The district court erred in granting summary judgment to plaintiff-company and vacating an arbitrator's award that sustained defendant-union's three grievances and ordered the plaintiff-company to pay an employee back wages for missed overtime, where: 1) the CBA was not so free of ambiguity regarding plaintiff-company's exclusive right to schedule its workforce such that the arbitrator's inquiry into past practice and introduction of extrinsic evidence were not permissible; 2) the arbitrator's interpretation draws its essence from the CBA, and the arbitrator did not manifestly disregard the CBA; and thus, 3) an order is issued to enforce the arbitrator's award.

Judgment dismissing federal whistleblower action under the Sarbanes-Oxley Act and related state law claims, is: 1) reversed in part as to the dismissal of two of the federal whistleblower claims, where a) the district court erred in requiring that plaintiff allege that his communications to his supervisors "definitively and specifically relate to" an existing violation of a particular anti-fraud law, as opposed to expressing a reasonable belief that corporate managers are taking actions that could run afoul of a particular anti-fraud law, and b) plaintiff pled sufficient facts to establish that his communication relating to the Atlantis and Wintergreen event was protected activity under Section 806; 2) affirmed in part where plaintiff cannot establish that his communications relating to the other alleged matters constituted protected activity; and 3) vacated as to the state law claim.

Dismissal of plaintiff's complaint alleging defendants discriminated against her by excluding her from officiating at boys' high school varsity basketball games, is: 1) affirmed in part with regard to the claims against defendants CVC and IAABO because plaintiff cannot allege an employment relationship for the purposes of Title VII and Title IX; but 2) reversed in part and remanded because plaintiff has plausibly alleged an employment relationship with defendant Hamilton for regular season games, with NJSIAA for post-season games, and with Board 193 as an employment agency

Summary judgments in favor of defendants on plaintiffs' claims of retaliation for the exercise of First Amendment rights and discrimination when they were denied promotions to lieutenant, are vacated and remanded, where: 1) on plaintiff Montone's political affiliation claim, the district court misapplied the summary judgment standard by weighing evidence and drawing inferences against plaintiff Montone, even after acknowledging that she presented sufficient evidence to show that the reasons proffered defendants for her non-promotion may have been pretextual, improperly dismissed evidence of a culture of political patronage in Jersey City, and erred in granting summary judgment based upon evidence of the promotion of another mayoral supporter; 2) on plaintiff Montone's First Amendment retaliation claim, the district court erred by concluding that her gender discrimination complaints did not involve matters of public concern; 3) the Astriab plaintiffs have standing; and 4) on the the Astriab plaintiffs' claims of retaliation, there is a genuine issue of material fact as to whether plaintiff Montone's political conduct was a motivating factor in the defendants' decision not to promote the Astriab plaintiffs.

Denial of plaintiff\'s motion to vacate the arbitrator\'s decision that rejected his discrimination claim, is affirmed, where: 1) the administrative closing of the case is not a final order and did not deprive the district court of jurisdiction; 2) plaintiff\'s claim fails because no reasonable person would conclude that the arbitrator was partial to defendant because neither her teaching relationship with defendant\'s employee nor undisclosed election support establish evident partiality or an appearance of bias, particularly where the law firm representing plaintiff contributed to the arbitrator\'s campaign five times the amount that defendant did; and 3) plaintiff\'s fraud claim fails.

Summary judgment for defendant-employer is: 1) reversed and remanded on plaintiff's discrimination and breach of contract claims, where the record clearly demonstrates that a dispute of material fact exists as to whether plaintiff resigned or was terminated; but 2) affirmed on plaintiff's claims for breach of the covenant of good faith and fair dealing, wrongful interference with contractual relations, and defamation because plaintiff has not demonstrated disputes of material fact as to these remaining state law claims. - See more at: http://caselaw.findlaw.com/summary/opinion/us-3rd-circuit/2013/02/20/262663.html?DCMP=NWL-cons_humanresource#sthash.1hCMGtvL.dpuf

In 1983 action challenging defendant-school district's failure to fully credit plaintiff's out-of-state teaching experience in setting his salary, district court's grant of defendant's motion to dismiss is affirmed, where: 1) rational basis review applies to the experienced-based classification because it does not implicate a fundamental right; 2) it does not violate the Constitution for defendant to base its teacher salaries, in part, on prior in-state teaching experience; and 3) the district court did not abuse its discretion in denying plaintiff leave to amend his complaint.

In an action for employment discrimination and related claims, plaintiff's appeal of the district court's grant of the employer's motion for summary judgment is dismissed for lack of appellate jurisdiction as the district court improperly granted plaintiff's motion for an extension of time to file a notice of appeal under Rule 4(a)(5), in erroneously finding that plaintiff established "excusable neglect" under the rule.

In a suit brought by Wal-Mart cleaning crew seeking compensation for unpaid overtime and certification of a collective action under the Fair Labor Standards Act (FLSA), civil damages under RICO, and damages for false imprisonment, district court's grant of summary judgment in favor of the defendant is affirmed where: 1) plaintiffs have failed to satisfy the "similarly situated" standard, as the similarities among the proposed plaintiffs are too few, and the differences among the proposed plaintiffs are too many; 2) plaintiffs have failed to state a claim for RICO or RICO conspiracy by failing to allege a pattern of predicate acts; and 3) summary judgment on plaintiffs' false imprisonment claim is appropriate as they have not shown that emergency exits were absent in the buildings or obstructed in any way.

In plaintiff's suit against her former employer alleging that the termination of her employment was a violation under the Family Medical Leave Act (FMLA), district court's grant of summary judgment in favor of the employer is vacated and remanded, as genuine factual disputes exist about whether plaintiff's notice was adequate, whether her invocation of FMLA rights was a negative factor precipitating her termination and whether the employer's justification for its action was mere pretext for retaliation.

In a nationwide collective class action under the Fair Labor Standards Act (FLSA) alleging failure to pay required overtime wages, the district court's grant of summary judgment for the sole stockholder of thirty eight domestic subsidiaries is affirmed where it is not a "joint employer" of the subsidiaries' assistant managers within the meaning of the FLSA.

In a former employee's suit alleging unlawful termination from employment for refusal to endorse a paycheck presented to her as a receipt for the employer, an order of the appellate division of the district court in favor of the employee is reversed, where: 1) the Virgin Islands Wrongful Discharge Act permitted the termination of an employee who "wilfully and intentionally disobeys reasonable and lawful rules, orders, and instructions of the employer"; 2) the employer's requirement that the employee endorse an unsigned paycheck as a receipt of payment was reasonable; and 3) the reasonableness of an employer's administrative order cannot be dependent on each employee's personal needs, whether known or unknown to the employer.

In an action by the Secretary of Labor against individuals arising from their alleged breach of fiduciary duties to a union health benefit plan governed by ERISA, the district court's judgment for the defendants is vacated and the case remanded, where the district court erred in failing to determine whether payments--collected by two companies that enabled small businesses to obtain health benefits for their employees by enrolling the employees in the plan, and by a company that marketed this scheme--were plan assets subject to ERISA.

In consolidated opt-out Fed. R. Civ. P. 23(b)(3) damages class actions based on state statutory wage and overtime laws that paralleled the federal Fair Labor Standards Act (FLSA), which suits alleged violations arising from the same conduct by the same defendant sued in a separate opt-in collective action under the FLSA at 29 USC section 216(b), the district court's judgment granting the defendants' motion to dismiss on the pleadings is: 1) reversed, as a) purported "inherent incompatibility" with FLSA 216(b) actions does not defeat otherwise available federal jurisdiction over opt-out actions based on state law, and b) permitting the opt-out class action to proceed alongside the FLSA opt-in action would not violate the Rules Enabling Act; and 2) affirmed to the extent it held that the state laws were not preempted by the FLSA.

In an employee's suit under the Family and Medical Leave Act (FMLA), the district court's summary judgment in favor of the employee's supervisor is reversed, as: 1) the FMLA permits individual liability against supervisors at public agencies; and 2) the district court erred in holding that the supervisor was not an employer under the FMLA, where the record suggested that he exercised control over the conditions of the plaintiff's employment.

In an appeal from a judgment of the district court dismissing plaintiff's state-law employment discrimination case, judgment is reversed where the court abused its discretion by dismissing complaint as a sanction for plaintiff's failure to produce originals of medical notes requested by the defendant

In an appeal from a judgment of the district court concerning the standard for awarding interim injunctive relief under Section 10(j) of the National Labor Relations Act, judgment is affirmed where the court correctly granted an interim bargaining order, but remanded for a determination of whether relief is appropriate under the Circuit's two-part test

In an appeal from a judgment of district court ordering full reimbursement of medical expenses under Section 502(a)(3) of ERISA without allowance for legal costs, judgment is reversed and remanded where Section 502(a)(3) is subject to equitable limitations.

In an appeal from a judgment of the district court dismissing plaintiff's challenge to defendant's residency requirement for its non-uniformed work force on summary adjudication, judgment is reversed because, on the record, summary judgment was inappropriate where complaint alleges that the adopted requirement has a disparate impact on white, non-Hispanics because Newark's population does not reflect the racial make-up of the relevant labor market in the surrounding area.

In an appeal from a judgment of the district court dismissing, for lack of subject matter jurisdiction, a class-action for relief under the Fair Labor Standards Act (FLSA), 29 U.S.C. sections 207 and 216(b), judgment is reversed where a collective action brought under Section 216(b) does not become moot when, prior to moving for "conditional certification" and prior to any other plaintiff opting in to the suit, the putative representative receives a Rule 68 offer.

In a commercial dispute, district court's order denying motion by petitioner to unseal portions of a judicial record containing the terms of a confidential settlement agreement is affirmed, where, on balance, the privacy interest of plaintiff outweighs public interest in disclosure.

In a suit brought by a pilot alleging a violation of section 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. section 1132(a)(1)(B), claiming that airline employer impermissibly terminated his long-term disability benefits, the grant of summary judgment for employer is reversed where the termination of benefits was arbitrary and capricious in light of the numerous substantive deficiencies and procedural irregularities that pervaded employer's decision-making process.

In plaintiffs' suit against the City of Hazleton to enjoin enforcement of ordinances that attempt to regulate employment of, and provision of rental housing to, certain aliens, district court's entry of permanent injunction against the city is affirmed in part, vacated in part and remanded where: 1) district court erred in reaching the merits of the challenge to the private cause of action provision because no plaintiff has standing to challenge that provision; 2) the employment provisions of the ordinances stand as an obstacle to the accomplishment and execution of IRCA's objective, and thus are preempted; and 3) the housing provisions of the city's ordinances are preempted regulations of immigration, and both field and conflict preempted by the INA.

In plaintiff's suit against several federal government defendants under the Americans with Disabilities Act and the Rehabilitation Act, arising from a voluntary layoff from employment at the Tobyhanna Army Depot, district court's grant of summary judgment in favor of the defendants is affirmed where: 1) because plaintiff did not demonstrate that the medications that were causing his problems were medically necessary, their side effects cannot be considered as impairments within the meaning of the ADA; 2) plaintiff's employers did not regard him as disabled within the meaning of the ADA; and 3) plaintiff could not have had a good faith belief that his side effects were anything but temporary, and therefore he could not have had a good faith belief that he was disabled within the meaning of the ADA.

In an Americans with Disabilities Act (ADA) action claiming constructive discharge based on plaintiff's partial blindness, summary judgment for defendant is affirmed in part where no reasonable juror could find that the actions to which plaintiff referred made her workplace so unbearable that a reasonable person would have felt compelled to resign. However, the judgment is reversed in part where the ADA contemplated that employers may need to make reasonable shift changes in order to accommodate a disabled employee's disability-related difficulties in getting to work.

In plaintiff's suit against her former employer for violation of the FMLA, summary judgment in favor employer is vacated and remanded as an employee may satisfy her burden of proving three days of incapacitation through a combination of expert medical and lay testimony. Here, when expert medical opinion of a doctor that plaintiff was incapacitated for two days because of her illness is combined with plaintiff's lay testimony that she was incapacitated for two additional days, it necessarily follows that a material issue of fact exists as to whether plaintiff suffered from a serious health condition.

In plaintiffs' suit against defendant-Port Authority under the FLSA, alleging they were denied proper overtime pay as helicopter pilots, summary judgment in favor of plaintiffs is affirmed where: 1) Port Authority helicopter pilots are not "learned professionals" and are not exempt from the provisions of the FLSA; 2) district court correctly concluded that Port Authority's violation of the FLSA was not willful, and that plaintiffs were thus entitled to only two years of back pay, not three; and 3) district court did not abuse its discretion in awarding prejudgment interest to plaintiffs.

In plaintiff's race, national-origin, employment discrimination and retaliation action against defendant-former employer, district court's dismissal of plaintiff's federal claims in his second complaint is affirmed as plaintiff's federal claims are barred by res judicata because his section 1981 claims arise from the same set of facts as his Title VII claims which were dismissed in his first complaint. Also, the district court did not abuse its discretion when it declined to exercise supplemental jurisdiction over plaintiff's state claim and dismissed without prejudice instead of dismissing that claim with prejudice.

In plaintiff's case against her former employer under the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and for retaliation, summary judgment in favor of defendant-employer is affirmed in part, and vacated and remanded in part where: 1) the record indicates that a reasonable jury could conclude that defendant-Nationwide had constructive notice of hours plaintiff worked from home and thus, she was eligible for FMLA leave for purposes of summary judgment; 2) the version of section 825.110 in effect at the time of plaintiff's dismissal was invalid; 3) firing an employee for a valid request for FMLA leave may constitute interference with the employee's FMLA rights as well as retaliation against the employee; and 4) because no reasonable jury could conclude that plaintiff was fired because of her daughter's known disability, district court's summary judgment on her ADA claim is affirmed.

In plaintiff's gender and employment discrimination action alleging pay disparity against County-employer under Title VII and the Equal Pay Act of 1963, district court's judgment that the Title VII claim is untimely as to paychecks plaintiff received after June 20, 2006, is reversed and remanded in light of the Lilly Ledbetter Fair Pay Act of 2009, where a failure to answer a request for a raise qualifies as a compensation decision because the result is the same as if the request had been explicitly denied.

In an employment discrimination action under Title VII involving claims of gender stereotyping and religious harassment, district court\'s grant of summary judgment in favor of defendant is vacated with respect to the gender stereotyping claim, as the record below is ambiguous as to whether the claim was based on sexual orientation or discrimination because of sex, and thus because both are plausible, the case presents a question of fact for the jury and is not appropriate for summary judgment. District court\'s grant of summary judgment on the religious harassment claim was proper as plaintiff cannot satisfy the first element of his cause of action that there was intentional harassment because of religion.

Fourth Circuit

Appeals from federal district (trial level) courts in Maryland, North Carolina, South Carolina, Virginia, and West Virginia

Affirmed in part and reversed in part a judgment that three police officers were terminated because they blew the whistle on what they viewed as corruption within a police department. After a jury found in the officers' favor, they appealed certain pre-trial and post-trial rulings. The Fourth Circuit held that the trial judge should not have dismissed the officers' First Amendment claims against the town, and also reversed the judge's conclusion that the town's insurance policy covered only $1 million of the aggregate damages.

Affirming the district court denial of the Crazy Horse gentleman's club's motion to compel arbitration in a putative collective and class action case brought against them by a former exotic dancer complaining of labor violations where the club included clauses compelling arbitration and waiving the right to participate in class actions into agreements with their dancers during the course of litigation because the court found a unilateral, unsupervised, and misleading pattern of communication with absent class members.

In a Title VII retaliation case against a parent company of several restaurants, the district court's grant of summary judgment against plaintiff is affirmed where plaintiff had failed to create a genuine factual dispute concerning whether her supervisor's desire to retaliate against her was the but-for cause of her termination.

In an action alleging that plaintiff's former employer violated the Family and Medical Leave Act (FMLA), 29 U.S.C. section 2601 et seq., by not restoring plaintiff to his position when he returned from two-months-plus of medical leave, by placing him in a new job that was not equivalent to the one he held before he went on leave, and by terminating plaintiff from the new job because he took medical leave, the district court's grant of summary judgment to defendant is affirmed where plaintiff failed to adduce sufficient evidence to create a genuine issue of material fact such that a reasonable fact-finder could conclude the adverse employment action was taken for an impermissible reason, i.e., retaliation.

(United States Fourth Circuit) - In a racial discrimination suit under 42 U.S.C. section 1981, brought by a minority-owned television network that was granted and then subsequently denied an economic development loan from the City, involving the issue of whether it is plausible to believe that, in twenty-first century America, a municipal government may seek to contract with a minority-owned enterprise under some conditions, yet, on account of race, avoid contracting with a minority-owned company under other conditions, the district court's dismissal of the complaint with prejudice is reversed where plaintiff plausibly pled that the conditions under which the City was willing to grant it a loan were more stringent than those the City applied to similarly situated white-owned applicants.

In a suit brought by a Kenyan plaintiff who worked as a domestic servant, alleging that her employer, a Saudi family, forced her to provide labor in violation of the Trafficking Victims Protection Act of 2000 (TVPA), 18 U.S.C. section 1589 the district court's grant of summary judgment in favor of defendants is affirmed where plaintiff has failed to present sufficient evidence that the Saudi family knowingly coerced her into providing her labor and services 'by means of the abuse or threatened abuse of law or legal process,' 18 U.S.C. section 1589(a)(3).

In a suit by two police officers who appeal their dismissal from the force, claiming that it was in retaliation for the exercise of their First Amendment rights, the district court's grant of qualified immunity to the police chief is affirmed where it was reasonably unclear to the chief whether the officers had acted as private citizens or government employees.

In a suit brought by a former CIA agent who suffered from narcolepsy, alleging discrimination and ultimately termination based on his disability, failure to accommodate, and retaliation, the district court's dismissal of the complaint based on the state secrets doctrine is affirmed where the district court correctly concluded that the information in question is properly privileged and that litigation of the case would present an unjustifiable risk of disclosure of that information.

In a labor dispute involving four arbitration awards involving janitorial employees, the district court's judgment is affirmed where: 1) the arbitration awards were properly confirmed, based in large part upon the limited scope of this court's review of a labor-arbitration decision pursuant to a collective bargaining agreement (CBA); and 2) the Union waived its claim for attorneys' fees by not complying with Federal Rule of Civil Procedure 54.

In an action where plaintiff claims she was improperly reemployed in violation of Section 4313 of USERRA, the district court is affirmed where (1) any claim for reinstatement would be futile, (2) the Board already paid for past lost wages and benefits, (3) plaintiff cannot show that a future lost wages claim could proceed, and (4) plaintiff has not argued, nor presented any facts to demonstrate, that the Board willfully violated USERRA.

In a case brought by two police officers challenging disciplinary actions for violations of their Department's social networking policy, the district court's judgment denying relief on most of the claims is affirmed in part, reversed in part and remand for further proceedings where, although the court is sensitive to the Department&rsquo;s need for discipline throughout the chain of command, the policy here and the disciplinary actions taken pursuant to it would, if upheld, lead to an utter lack of transparency in law enforcement operations that the First Amendment cannot countenance.

In an action relief from an order of the Department of Labor's (DOL) Benefits Review Board (BRB) holding petitioner responsible for the payment of benefits to a coal miner and survivor's benefits to his widow under the Black Lung Benefits Act (BLBA), 30 U.S.C. section 901 et seq., the decision of the BRB is affirmed where petitioner, and not another operator, is liable for the claim.

In a suit brought by over 20 electrical construction workers under the Fair Labor Standards Act (FLSA), 29 U.S.C. section 201 et seq., seeking unpaid hourly and overtime wages for work completed under a federally funded subcontract, the District Court's grant of summary judgment to defendant is vacated where, in light of the statutory texts, which admit of no conflict, and the similarities between Powell, Masters, and this case, the statutes at issue apply concurrently to the plaintiffs' employment arrangement.

In a suit alleging 42 U.S.C. section 1981 claims for race discrimination hostile work environment and retaliation and Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000(e), claims for discrimination based on religion, national origin, and pregnancy, hostile work environment, and retaliation, the District Court's grant of summary judgment to defendant on all counts is vacated where genuine issues of material fact exist with respect to all claims.

In a suit under the Fair Labor Standards Act (FLSA), involving the question of whether the fire captains of Fairfax County, Virginia, firefighters who serve as first responders to fires and other emergencies, fall within that exception so that they are not entitled to overtime compensation, the District Court's judgment in favor of the Government, finding that the fire captains are exempt, is reversed where no reasonable jury could find by the requisite clear and convincing evidence that any of the Captains is exempt from the FLSA's overtime requirement.

In a suit brought by exotic dancers against their dance clubs for failure to comply with the Fair Labor Standards Act and corresponding Maryland wage and hour laws, the District Court's judgment in favor of plaintiffs is affirmed over defendant's claims of error where plaintiffs were employees of the defendant companies and not independent contractors.

In an employment action under the Federal Railroad Safety Act (FRSA), 49 U.S.C. section 20109, alleging plaintiff was disciplined in retaliation for his activities as local chairman of the transportation union, the District Court's grant summary judgment in favor of employer-defendant is affirmed where defendant had failed to show that any employee of defendant involved in the disciplinary process had also known about his union activities.

In a labor dispute between hospitals and their employees, the NLRB's application for enforcement of its final decision concluding the hospitals violated the National Labor Relations Act, 29 U.S.C. section 151 et seq., by refusing to bargain with the union, is granted where the hospitals' sole challenge to the merits of the Board's final decision to be baseless.

In an employment action brought by insurance investigators working for defendant and alleging denial of overtime pay under the Fair Labor Standards Act and related New York state law, the district court's grant of partial summary judgment to plaintiffs is affirmed in part where defendant failed to show plaintiff investigators' primary duty is directly related to GEICO's management or general business operations. The Court reversed in part on the issue of prejudgment interest.

In an employment action, the district court's grant of summary judgment to defendant employer on plaintiff's Fair Labor Standards Act (FLSA) and Maryland Wage and Hour Law claims are affirmed where plaintiff, a registered nurse working in the health care field, is exempt from FLSA overtime rules as an employee working in a bona fide professional capacity whose primary duty involves work requiring knowledge of an advanced type of science or learning acquiring through a prolonged course of specialized instruction.

In an a consolidated employment action seeking wages for unpaid overtime work under the Fair Labor Standards Act, 29 U.S.C . section 201 et seq., and the North Carolina Wage and Hour Act, N.C. Gen. Stat. section 95-25.1, the district court's dismissal of defendant's motion to compel arbitration is affirmed where the defendant's employee handbook, which expressly stated its contents did not constitute a binding contract, was insufficient to demonstrate that plaintiff had agreed to arbitrate any claims. The court also dismissed defendant's petition for permission to appeal the district court's class certification order under F.R.C.P. Rule 23(f) as untimely.

In a former-employee's suit under Title VII of the Civil Rights Act of 1964, alleging that he was terminated for engaging in protected activity, including opposing an unlawful employment practice, the district court's dismissal of the complaint, on the grounds that no individual activity in which plaintiff engaged by itself constituted protected oppositional conduct and that the co-called "manager rule" prevented an employee whose job responsibilities included reporting discrimination claims from seeing protection under Title VII's anti-retaliation provision, is reversed where: 1) the proper test for analyzing oppositional conduct requires consideration of the employee's course of conduct as a whole; and 2) the "manager rule" has no place in Title VII jurisprudence.

In an action brought by hotel servers against their employer, alleging violations of the tip-credit provision of the Fair Labor Standards Act (FLSA), 29 U.S.C. section 203(m), their collective bargaining agreement, and Maryland's Wage Payment and Collection Law, the district court's dismissal of the complaint is affirmed where plaintiffs concede that their wages do not fall below the statutory minimum, and the "the statutory language," of the FLSA, including section 203(m), "simply does not contemplate a claim for wages other than minimum or overtime wages."

In a suit by a former assistant principal contending that the board of education violated her rights under the Family and Medical Leave Act of 1993 (FMLA) and the Americans with Disabilities Act of 1990 (ADA) and alleging interference with medical leaves, retaliation for taking those leaves, discrimination and retaliation on the basis of disability, and failure to accommodate his condition, the district court's judgment is affirmed where there is no merit in the claims.

In an action by a blind government employee who was not transferred to or hired at a call center along with her sighted workers, alleging violations of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. section 794, or Title II of the American Disabilities Act of 1990 (ADA), 42 U.S.C. section 12131, the district court's order granting summary judgment to defendants is: 1) reversed as to plaintiff's Section 504 claims where genuine issues of material fact remain; and 2) affirmed as to the Title II claim because public employees cannot use Title II to bring employment discrimination claims against their employers.

In a case dealing with the effect of the Supreme Court's decision in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), on what Title VII retaliation plaintiffs must show to survive a motion for summary judgment, the district court's grant of summary judgment is reversed in part where: 1) the Nassar Court was silent as to the application of but-for causation in McDonnell Douglas pretext cases, and 2) Nassar did not alter the McDonnell Douglas analysis for retaliation claims.

In a case concerning the certification of a class of black steel workers who allege endemic racial discrimination at a South Carolina plant owned by defendants, alleging discriminatory job promotion practices and a racially hostile work environment under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. section 1981, the district court's second denial of class certification is again reversed and remanded where it misapprehended the reach of the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011), where: 1) statistics indicate that promotions at Nucor depended in part on whether an individual was black or white; 2) substantial anecdotal evidence suggests discrimination in specific promotions decisions in multiple plant departments; and 3) there is also significant evidence that those promotions decisions were made in the context of a racially hostile work environment.

In an action alleging discrimination and hostile work environment in violation of both the Title VII of the Civil Rights Act of 1964 and 42 U.S.C. section 1981, summary judgment to defendants is vacated where: 1) under Faragher v. City of Boca Raton, 524 U.S. 775 (1998), an isolated incident of harassment, if extremely serious, can create a hostile work environment; 2) an employee is protected from retaliation when she reports an isolated incident of harassment that is physically threatening or humiliating, even if a hostile work environment is not engendered by that incident alone; and 3) to the extent this decision is in conflict with Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006), Jordan is hereby overruled

A party to an arbitration proceeding under the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA) can obtain review of the arbitration order, as provided in 29 U.S.C. section 1401(b)(2), by commencing an action by filing a complaint. Here, the amended complaint related back to the filing date of the original complaint, thus rendering it timely.

In this case, plaintiffs seek to hold defendant SSA Security responsible for a residential arson that was allegedly committed by one of its security guards. The district court granted summary judgment to SSA on plaintiffs' negligence-based claims and on their claim under the Maryland Security Guards Act (MSGA), concluding that the MSGA merely codified and did not expand the common-law doctrine of respondeat superior with regard to security companies. The judgment is affirmed, where MSGA section 19-501 does not impose liability beyond the common law principles of respondeat superior such that an employer would be responsible for the off-duty criminal acts of an employee, even if the employee planned any part of the off-duty criminal acts while he or she was on duty.

In this case, plaintiff, who suffered from social anxiety disorder, brought suit against her employer under the Americans with Disabilities Act (ADA), alleging that her employer waited three weeks without acting on her request for accommodation and subsequently terminated her. The district court granted summary judgment to the employer on all counts. The judgment is reversed in part and the case is remanded for trial, where: 1) the district court erred by resolving disputed facts in favor of the movant; 2) a reasonably jury could conclude that plaintiff has made out each of the elements of a prima facie case of discriminatory discharge and has set out sufficient evidence of pretext as to the disability discrimination and retaliatory discharge claims; and 3) a reasonable jury could find that with a reasonable accommodation, plaintiff could perform the essential functions of her position as a deputy clerk.

In this case, defendant Freeman conducted background checks on its job applicants, which plaintiff Equal Employment Opportunity Commission (EEOC) alleges had an unlawful disparate impact on black and male job applicants. Judgment of the district court granting summary judgment to Freeman after excluding the EEOC's expert testimony as unreliable under Federal Rule of Evidence 702 is affirmed, where: 1) the district court properly excluded the EEOC's expert testimony as unreliable given the sheer number of mistakes, omissions, and fallacies in the expert's analysis, which rendered it outside the range where experts might reasonably differ; and 2) without this testimony, the agency failed to establish a prima facie case of discrimination.

In this case, Power Fuels petitions for review of a final order of the Federal Mine Safety and Health Review Commission assigning jurisdiction over Power Fuels' coal facility to the Department of Labor's Mine Safety and Health Administration (MSHA) rather than the nonspecialized Occupational Safety and Health Administration. The petition for review is denied, where: 1) the Secretary of Labor permissibly concluded that a facility that blends coal for a nearby power plant was subject to the Federal Mine Safety and Health Act (the Mine Act); and 2) because the Mine Act covers this kind of activity, MSHA's assertion of jurisdiction was proper.

In this case, defendant video game publishing company fired plaintiff, its chief financial officer, after she raised concerns about a misstatement on one of the companies filings with the Securities and Exchange Commission. A jury found that the company and two of its top officers violated the Sarbanes-Oxley Act, which makes it illegal for publicly traded companies to retaliate against employees who report potentially unlawful conduct. Judgment of the district court awarding the chief financial officer more than $500,000 in back pay and emotional distress damages is affirmed, where: 1) the Sarbanes-Oxley Act retaliatory discharge claims are subject to the four-year statute of limitations under 28 U.S.C. section 1658(a), and not the two-year limitations under section 1658(b)(1); 2) the administrative complaint in this case satisfies the exhaustion requirement; and 3) emotional distress damages are available under the statute.

In this case, plaintiff sued his former employer, alleging that he was fired in retaliation for reporting illegal pharmacy practices, which caused him to suffer a heart attack and emotional distress. The district court's denial of plaintiff's motion to remand and dismissal of plaintiff's fraud, intentional infliction of emotional distress (IIED), personal injury, and wrongful discharge claims is affirmed in all respects except as to the wrongful discharge claim, where: 1) defendants have satisfied there burden of showing there is "no possibility" of plaintiff succeeding in any of his tort claims against any of the non-diverse defendants; 2) plaintiff did not sufficiently plead his fraud, IIED, or personal injury claims; and 3) plaintiff sufficiently stated a claim that his termination violated Virginia's public policy exception to its at-will employment doctrine.

Summary judgment against plaintiff on her claims of a sexually hostile work environment and retaliation is vacated and remanded as to the hostile work environment claim and affirmed as to the retaliation claim, where: 1) the totality of the record creates too close of a question as to whether an objectively hostile or abusive work environment was created to be decided on summary judgment, as there is a genuine dispute of material fact; and 2) plaintiff has failed to produce evidence creating a triable issue as to whether defendant's proffered explanation for terminating her was pretext for retaliation, and as such, the district court did not err in granting summary judgment on this claim.

In this case, plaintiff alleges that she was forced tow work for the defendants for wages well below the minimum from 2002 until her escape in 2008. The district court dismissed all of her claims, brought under the Victims of Trafficking and Violence Protection Act (TVPA), the Fair Labor Standards Act (FLSA), and Virginia state contract law, as time-barred. The dismissal of plaintiff's state law claims is affirmed, and the dismissal of plaintiff's TVPA and FLSA claims are reversed and remanded, where: 1) the TVPA claims may be timely under the ten-year limitations period if they were tolled until within four years of the TVPRA's enactment; and 2) the FLSA claim may be timely if plaintiff received actual notice of her rights within three years of filing this suit.

In this unpaid wages case, plaintiff-nurse sued two supervisors at the hospital where she was formerly employed for their alleged improper refusal to authorize overtime pay. Denial of defendants' motion to dismiss is reversed and remanded with instructions to dismiss plaintiff's complaint, where: 1) because the actions of the supervisors were inextricably tied to their official duties, the Commonwealth of Virginia is the real party in interest in this action; and 2) the Eleventh Amendment has withdrawn jurisdiction over suits of this nature against the States, effectively giving the Commonwealth immunity.

In this unpaid wages action, plaintiff police officers and firefighters brought separate suits against defendant-city. Denial of motions to dismiss is affirmed, where: 1) the orders denying defendant's motions to dismiss plaintiffs' contract and estoppel claims on governmental immunity grounds constitute final orders subject to interlocutory review under the collateral order doctrine, and this court therefore has jurisdiction; and 2) the district court properly denied the motions to dismiss because plaintiffs have sufficiently alleged that they have valid contracts for longevity pay with defendant, and thus defendant cannot prevail on its governmental immunity defense. - See more at: http://caselaw.findlaw.com/summary/opinion/us-4th-circuit/2014/10/22/271868.html#sthash.oRecW5f3.dpuf

Petition for review of an order of the National Labor Relations Board (NLRB) affirming a finding that petitioner Gestamp discharged employees in violation of the National Labor Relations Act (NLRA) is: 1) granted in part, where the Administrative Law Judge (ALJ) never found that any Gestamp official involved in the decisions to suspend or fire the employees-at-issue were aware of their union activity, nor could the ALJ have made such a finding based on the record before him; and 2) denied with respect to the threat claim. - See more at: http://caselaw.findlaw.com/summary/opinion/us-4th-circuit/2014/10/08/271706.html#sthash.wwk8xe0u.dpuf

Summary judgment in favor of defendant-employer on plaintiff's claims of racial and sexual hostile work environment, constructive discharge, and common law obstruction of justice is: 1) reversed in part and remanded, with regard to plaintiff's hostile work environment claims, where the harassment by the third party was unwelcome, a reasonable jury could find that the harassment was based on her sex or race, a reasonable jury could find the harassment was objectively severe or pervasive, and a reasonable jury could find that defendant knew or should have known of the harassment and failed to take any remedial action; but 2) affirmed in part, as to the claims of constructive discharge and common law obstruction of justice.

In an action alleging that defendant-county's employee retirement benefit plan unlawfully discriminated against older county employees based on their age in violation of the Age Discrimination in Employment Act (ADEA), partial summary judgment in favor of plaintiff-EEOC on the issue of liability is affirmed, where: 1) the district court correctly determined that defendant-county's plan violated the ADEA, because the plan's employee contribution rates were determined by age, rather than by any permissible factor; and 2) the ADEA's "safe harbor provision" applicable to early retirement benefit plans does not shield defendant-county from liability for the alleged discrimination.

Dismissal of plaintiff's employment discrimination suit is: 1) vacated in part and remanded, where plaintiff's complaint alleges discriminatory conduct that occurred before any legislative activity and the suit was dismissed before plaintiff had an opportunity to discover evidence necessary to her claims; but 2) affirmed in part, where plaintiff's age discrimination and disability discrimination claims are barred by sovereign immunity

Summary judgment for defendant-employer in an action alleging disability discrimination and failure to accommodate is reversed and remanded, where: 1) pursuant to recent amendments to the Americans with Disabilities Act, a sufficiently severe temporary impairment may constitute a disability; and 2) the district court erred in holding to the contrary.

Dismissal of plaintiff's Federal Tort Claims Act (FTCA) action against the government alleging that the Army was negligent and liable for the sexual assault against her by a U.S. Army Specialist in her residence on Fort Bragg, is affirmed, where: 1) the complaint fails to establish that the Army breached a duty to plaintiff under North Carolina law; 2) the district court did not abuse its discretion by ruling on the government's motion without granting discovery to plaintiff; but 3) the district court erred in its alternative holding because although the government's ability to control a tortfeasor must be independent of the tortfeasor's status as a government employee, knowledge of the tortfeasor's propensity for violence or criminal history gained as a result of such status does not, per se, nullify an FTCA claim.

Dismissal of plaintiffs' action under the Labor Management Relations Act (LMRA) alleging that defendants orchestrated fourteen separate legal challenges against their commercial real estate project in order to force plaintiffs to terminate their relationship with a non-unionized supermarket, which plaintiffs allege was an illicit "secondary boycott," is: 1) affirmed in part, where the district court correctly concluded that defendant Fund is not a "labor organization" under the National Labor Relations Act; but 2) vacated in part and remanded, where under the "sham litigation" exception to the Noerr-Pennington doctrine, the pleadings and evidence in this case are sufficient to show that the defendant unions have abused their right to petition the courts beyond the point of constitutional protection.

Petition for review of an order of the Benefits Review Board (BRB) affirming the Administrative Law Judge's (ALJ) award of benefits to claimant, is denied, where: 1) the ALJ did not in fact apply rebuttal limitations to petitioner; instead, the ALJ considered all of the evidence that petitioner offered to demonstrate that pneumoconiosis did not cause or substantially contribute to claimant's total disability, and the Board affirmed the ALJ's analysis; and 2) petitioner's other challenges to the ALJ's factual findings and sufficiency of the evidence lack merit.

The President's three January 4, 2012 appointments to the National Labor Relations Board (NLRB) are constitutionally infirm, because the appointments were not made during "the Recess of the Senate," which is limited to intersession recesses, and accordingly, the NLRB's applications for enforcement of its orders are denied.

In consolidated cases involving claims for survivors\' benefits under the Black Lung Benefits Act (BLBA), the Department of Labor Benefits Review Board\'s awards of survivor benefits to widows of coal miners are affirmed, where: 1) because a recent amendment to the BLBA created a new cause of action that was unavailable to the widows when they brought their initial claims, res judicata does not bar their subsequent claims; and 2) the deceased husbands were both determined to be eligible to receive BLBA benefits at the time of their deaths, the widows meet the dependency and relationship criteria for eligible survivors, and thus, the widows are entitled to automatic derivative benefits under 30 U.S.C. section 932(l).

Petition for review of the decision by the Benefits Review Board to award black lung benefits to petitioner's former employee, is denied, where: 1) the award of benefits is supported by the substantial evidence in the record; 2) the Board properly affirmed the ALJ's finding that the former employee suffers from legal pneumoconiosis; and 3) the ALJ properly placed the burden of proof on the former employee to establish the existence of legal pneumoconiosis.

Summary judgment for defendant-employer on plaintiff's claim that defendant failed to provide a reasonable accommodation for his disability in violation of the Americans with Disabilities Act is affirmed, where: 1) plaintiff had standing to maintain his claim despite his bankruptcy filing because, due to the powers vested in the Chapter 13 debtor and trustee, a Chapter 13 debtor may retain standing to bring his pre-bankruptcy petition claims; but 2) plaintiff was unable to show he could perform the essential functions of his position with a reasonable accommodation

Summary judgment for defendants on plaintiff's claims under the Uniform Services Employment and Reemployment Rights Act (USERRA) are affirmed, where: 1) the four-year federal "catch-all" statute of limitations, 28 U.S.C. section 1658(a), applies to plaintiff's USERRA claims; and 2) plaintiff did not file his action within four years of its accrual, notwithstanding his tolling arguments.

The district court properly dismissed plaintiff's action brought under the Administrative Procedure Act against defendant and its Director to reverse defendant's decision revoking plaintiff's top secret security clearance following his marriage, to reinstate his security clearance, and to award him back pay, benefits, and attorneys' fees, where plaintiff's complaint merely challenges the merits of the defendant's security clearance decision and his conclusory constitutional claims are unsuccessful attempts to circumvent the undisputed proposition that the Court will not review the merits of a security clearance decision.

Dismissal of class action brought by plaintiff-temporary employees alleging that they were entitled to the benefits of an arbitration award entered as the result of an arbitration between the School Board and the Union, as well as benefits from the underlying CBA is affirmed, where: 1) the Union adequately consented to the notice of removal; 2) the plaintiffs' complaint failed to state a claim for relief; and 3) the district court did not err in striking the plaintiffs' motion for reconsideration.

District court's refusal to compel arbitration pursuant to a provision in the parties' franchise agreement is vacated and remanded, where the district court erred in concluding that: 1) the class action waiver was an unconscionable contract provision; and 2) the other two challenged provisions regarding splitting arbitration fees, and a one-year limitations period, also rendered the arbitration clause unconscionable.

Summary judgment for defendants in False Claims Act (FCA) retaliation suit is affirmed, where plaintiff employee was not engaged in activity that qualified him for protection under the FCA's anti-retaliation provision.

Dismissal of plaintiff's claim alleging that defendant-union officials violated the Labor-Management Reporting and Disclosure Act (Act) by retaliating against her for reporting their supposed misconduct to the regional office is affirmed, where: 1) plaintiff did not speak on a matter of union concern when she reported the alleged pornography incident to Region 8; and thus, 2) the district court thus did not err in holding that she failed to state a claim under the Act

Denial of relief on claims of discrimination, retaliation, and hostile work environment, brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e, as well as wrongful discharge, assault, and battery, brought under Virginia law is affirmed where the District Court: 1) reasonably construed the scope of her charge of discrimination; 2) properly denied her leave to amend her complaint; 3) properly granted summary judgment to defendant on her claims of retaliatory discharge, assault, and battery.

Judgment for plaintiff against defendant-employer on ERISA claim alleging defendant unreasonably denied plaintiff's claim and failed to adequately notify her of a material change to its pension plan that allowed her to collect full benefits earlier than she had originally understood, is affirmed, where the district court: 1) properly considered limited evidence outside of the administrative record but known to defendant when it rendered plaintiff's benefits determination; 2) correctly determined that defendant breached its statutory and fiduciary duties to plaintiff; and 3) did not err in awarding plaintiff her lost benefits.

In discrimination action against employer claiming violations of the Pregnancy Discrimination Act and the Americans with Disabilities Act, summary judgment for defendant is affirmed, where: 1) plaintiff's ADA claim fails because she cannot establish a disability; 2) where a policy treats pregnant workers and non-pregnant workers alike, the employer has complied with the PDA, and therefore the UPS policy is not direct evidence of discrimination; and 3) plaintiff cannot establish that similarly situated employees received more favorable treatment than she did, and therefore she cannot establish the fourth element of the prima facie case for pregnancy discrimination.

In suit against defendant alleging violations of the Family Medical Leave Act (FMLA), by terminating her employment in retaliation for her decision to take medical leave and by failing to restore her to an equivalent position upon her return from leave, summary judgment for defendant is affirmed, where: 1) plaintiff fails to point to any evidence that defendant treated similarly situated employees who had not taken FMLA leave more favorably; and 2) the record shows that defendant would have suspended and terminated plaintiff's employment regardless of her decision to take leave.

In plaintiff's suit for disability discrimination against his former employer, local chapter of the Red Cross, judgment of the district court is: 1) affirmed as to the judgment with regard to the primary ADA claim; 2) affirmed as to the judgment regarding plaintiff's retaliation claim; 3) affirmed as to the judgment regarding plaintiff's confidentiality claim; and 4) vacated as to the court's ruling that the Chapter and the National Red Cross can be aggregated in order to meet the fifteen employee threshold required for an "employer" under the ADA, because the employer's cross appeal is unnecessary where an appellee seeks nothing more than to preserve a judgment in its favor.

In an employer's suit against a union seeking recovery of allegedly mistaken contributions under both ERISA section 403 and the federal common law of unjust enrichment, district court's grant of summary judgment in favor of the employer is reversed and remanded where the plan administrator's determination that the contributions were not made by mistake was not an abuse of discretion.

An employer's petition for review of the Benefits Review Board's judgment in favor of the wife of a deceased coal miner on her living miner's and survivor claims, is denied where: 1) the Board's rulings that the ALJ abused his discretion in granting the employer's modification request and that the ALJ's erroneous decision was subject to outright reversal will not be disturbed, as unlike the 2008 ALJ decision, the 2009 Board decision acknowledged and applied the correct legal principles, arriving at the conclusion that retroactively denying the deceased employee's living miner's benefits award, in order to foil his widow's good faith survivor claim, would not render justice under the Black Lung Benefits Act; and 2) the Board appropriately applied the doctrine of offensive nonmutual collateral estoppel in approving the widow's survivor's claim.

In plaintiff's suit against its former employee and a competitor, alleging a violation of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. section 1030, district court's judgment in favor of the defendants is affirmed, as the CFAA provides no relief for defendants' alleged conduct because CFAA does not impose liability on employees who violate a use policy, but rather, the CFAA limits liability to individuals who access computers without authorization or who obtain or alter information beyond the bounds or their authorized access.

In plaintiffs' class action suit against Bank of America, claiming violations of certain provisions of the Employment Retirement Income Security Act of 1974 (ERISA), district court's order dismissing a count claiming a violation of the anti-backloading rules is affirmed, as plaintiffs' anti-backloading theory hinged on a finding that the Plan's normal retirement age (NRA) is invalid, and here, the plaintiffs have conceded that the Plan's NRA is valid with respect to section 1002(24).

District court's denial of a request by the Equal Employment Opportunity Commission (EEOC) seeking judicial enforcement of its subpoena against a defendant, a provider of temporary staffing services, arising from a discrimination charge brought by defendant's former employee, is reversed and remanded where: 1) the EEOC had jurisdiction under Title VII and the ADA to seek enforcement of the administrative subpoena; 2) all of the EEOC's requested materials fall within the broad definition of relevance application to EEOC administrative subpoenas; and 3) the evidence proffered by the defendant was insufficient as a matter of law to support a finding that the costs of compliance rise to the level of an undue burden.

In a 42 U.S.C. section 1983 brought by corrections officers at the Correctional Unit in Rustburg, Virginia, alleging that the defendants unlawfully fired them for exercising their First Amendment rights to free speech, the District Court's grant of summary judgment to defendants is affirmed where under Supreme Court jurisprudence, complaints about the employee's own duties that are filed with an employer using an internal grievance procedure, do not relate to a matter of public concern and accordingly may give rise to discipline without imposing any special burden of justification on the government employer.

In a putative class action to collect amounts allegedly owed to them by employee benefit plans established by the OV Health System Parties, the District Court's denial of the plan administrator's motion to dismiss is reversed where it erred in the determination that the administrator defaulted on its right to arbitrate.

In an action brought by volunteer fire and rescue departments against a county and its officials, contending that defendants eliminated part of plaintiffs' funding in retaliation for plaintiffs' opposition to legislation supported by defendants, the District Court's dismissal is affirmed where finding that certain individual defendants are protected by legislative immunity and because the individual plaintiffs were not county employees, they could not bring an abusive discharge claim under state law.

In an action brought by a former letter carrier who was injured on the job and collected Workers' Compensation, alleging that the Department of Labor's taking from her state court settlement the amount provided by Workers' Compensation violated both FECA and the Constitution, the district court's determination that plaintiff must reimburse the Department of Labor out of a money judgment she obtained in a state court action against the Town of Ninety Six is affirmed where the Town of Ninety Six, South Carolina qualifies as a "person other than the United States" under 5 U.S.C. section 8132.

In a discrimination case against plaintiff's former employer under the Americans with Disabilities Act (ADA), 42 U.S.C. section 12101 et seq., for denying her a reasonable accommodation following her foot surgery, the district court's dismissal of suit after concluding plaintiff failed to exhaust her administrative remedies by not filing her proposed accommodation with the Equal Employment Opportunity Commission (EEOC) is reversed where plaintiff's administrative remedies were adequately exhausted.

In a case in which an administrative law judge (ALJ) found that a man suffered disabling obstructive lung disease arising out of his work as a coal miner and awarded his widow black lung benefits payable by his former employer, a petition for review is denied, where the award of benefits found support in the record and accorded with the Administrative Procedure Act, as the ALJ properly evaluated the appropriate weight to accord conflicting medical opinions.

In a Title VII sex discrimination suit alleging that the plaintiff's former employer offered her a less favorable severance package than that offered male employees holding similar positions, the district court's dismissal for failure to allege an "adverse employment action" is reversed and the case remanded, where: 1) the district court erred in dismissing on the theory that the discriminatory denial of a noncontractual employment benefit cannot constitute an adverse employment action; and 2) it was not necessary to allege that the employer made its purportedly discriminatory severance offer before it terminated her employment.

In a suit by an insurer for a declaratory judgment that it owed no duty to defend or indemnify its insured in an action commenced by the insured's employees for violations of the Fair Labor Standards Act (FLSA), the district court's grant of summary judgment to the insurer is reversed, where: 1) the underlying FLSA complaint alleged a claim for a "wrongful act" covered by the policy; and 2) liquidated damages and attorneys' fees claimed because of the FLSA violations would be "losses" covered by the policy.

On a motion to confirm an arbitration award in favor of former employees who asserted that their former employer's claims against them were frivolous, the decision of the district court upholding the award is affirmed, where: 1) the arbitration panel was not compelled to follow state procedural mandates in the arbitration; 2) even if the state procedures did apply in arbitration, the employer did not allege misconduct by the arbitrators; 3) the employer did not demonstrate that the arbitrators manifestly disregarded the law when they awarded the employees $1.1 million in attorneys' fees and costs under the South Carolina Frivolous Civil Proceedings Act.

In racial discrimination action against the Secretary of the U.S. Department of Homeland Security under Title VII of the Civil Rights Act of 1964, originally filed in a North Carolina state court and removed to federal court, the district court's grant of a motion to dismiss is affirmed, where: 1) the state court lacked subject matter jurisdiction because the United States and the Secretary of Homeland Security did not consent to be sued in a North Carolina state court under Title VII; and 2) removal to federal court, under the doctrine of derivative jurisdiction, did not cure that jurisdictional defect. Read more...

In a challenge to an administrative order conferring benefits on a surviving spouse under the Black Lung Benefits Act (BLBA), as amended by the Patient Protection and Affordable Care Act, order is upheld where under Section 422(l) of the BLBA, a surviving spouse is automatically entitled to benefits without having to establish that the miner's death was due to pneumoconiosis

In a Title VII action for harassment and retaliation, summary judgment in favor of the defendant is reversed where plaintiff's allegations that her boss forcibly kissed her, fondled her leg, propositioned her, asked sexually explicit questions, described sexual activities he wished to perform, and then, after she spurned the advances and filed a harassment complaint, fired her are sufficient to sustain claims of hostile work environment, quid pro quo harassment, and retaliation.

In a dispute involving whether a collective bargaining agreement permitted defendant to make unilateral changes to the health benefits of retirees from its assembly plant after the agreement expired, judgment of the district court in favor of plaintiffs is affirmed where defendant is prohibited from such modifications unless it followed the mechanism agreed to by both parties in the agreement, which it failed to do.

In a Fair Labor Standards Act (FLSA) dispute, 29 U.S.C. sections 201 et seq., judgment of the district court in favor of plaintiffs is affirmed in part and reversed in part where: 1) under the FLSA, time spent donning and doffing protective gear at the beginning and the end of each workday is compensable, while mid-shift donning and doffing is not; and 2) defendant's violations were not willful, thus triggering only a two-year statute of limitations for claims for back pay.

In a Title VII action alleging a hostile work environment on the basis on race, summary judgment in favor of defendant is affirmed in part and vacated in part because a genuine issue of material fact existed as to whether defendant had notice of alleged racial slurs and pranks in the workplace prior to February 2006 but failed to respond with any remedial action.

In a Title VII action alleging retaliation, religious and speech-based discrimination in relation to the decision not to promote plaintiff to the position of full professor, summary judgment in favor of defendants is affirmed in part and reversed in part where district court properly held that plaintiff failed to satisfy his burdens under both Hill v. Lockheed and McDonnell-Douglas, but erred in its McVey analysis of the First Amendment claim.

In a dispute under the Fair Labor Standards Act (Act), 29 U.S.C. section 213(a)(1), judgment of the district court is affirmed where plaintiff falls within the executive exemption to the Act because even though she regularly performed nonexecutive tasks, she was the highest level employee of defendant and her income was performance and profit-based.

Petition for review of an OSHA ruling is dismissed where the court lacks jurisdiction to hear the matter, as a 2010 directive stating that violations of certain standards would be considered de minimis, and would therefore carry no penalty, if employers took different precautionary measures, is more accurately viewed as a description of the agency's new enforcement policy and not a "standard", which would permit review.

In plaintiffs' suit against their former employer for unpaid overtime compensation under the Fair Labor Standards Act (FLSA), district court's judgment is affirmed in part, vacated in part and remanded where: 1) the district court's method of computing unpaid overtime compensation is affirmed as, in Overnight Motor, the Court recognized that employees and employers are free to agree to a reduced hourly wage in exchange for a fixed weekly salary, provided the fixed weekly salary covers all hours worked and meets minimum wage requirements, and here, the former employees agreed to receive straight time pay for all hours worked in a given workweek and have already received such pay; but 2) the district court erred in granting summary judgment on the issue of willfulness as a genuine issue of material fact exists as to willfulness.

In plaintiff's retaliation action against his former employer under the False Claims Act, claiming that defendant took adverse employment action against him because he investigated and opposed defendant's attempts to defraud the United States, in connection with defendant's bid in response to the Secret Service's contract solicitation for rifles, district court's grant of defendant's motion for summary judgment is affirmed as plaintiff's actions fall outside the scope of FCA protection as the FCA shields employees from retaliation when they oppose fraud, and here, the conduct plaintiff opposed involved nothing more than non-fraudulent statements made by defendant during the course of a contractual bidding process.

In an African-American plaintiff's suit against Maryland Court of Appeals and individual defendants for violations of Title VII of the Civil Rights Act and the FLMA, claiming that he was fired for requesting sick leave because he is black, district court's dismissal for failure to state a claim upon which relief can be granted is affirmed where: 1) district court correctly concluded that the complaint failed to state a Title VII race discrimination claim; 2) district court correctly ruled that plaintiff failed to state a Title VII retaliation claim as no facts in the complaint identify any protected activity by plaintiff that prompted the retaliation of which he complains; 3) district court properly dismissed plaintiff's FMLA claim as barred by the Eleventh Amendment.

In an Equal Employment Opportunity Commission's (EEOC) suit on behalf of plaintiff-doctor against her former employer for creating a hostile work environment because of plaintiff's sex, district court's judgment in favor of the defendant is reversed and remanded as the EEOC has presented an issue of triable fact as what happened was not merely general crudity but a series of graphic remarks of a highly personal nature directed at a female employee by the sole owner of an establishment.

In a suit brought after plaintiff-truck driver was terminated from her employment claiming sex discrimination under Title VII when defendant allegedly fired her due to a discriminatory belief that women were incapable of performing the duties of her position, summary judgment for defendant is reversed where plaintiff presented a triable issue of fact as to whether defendant's proffered legitimate and non-discriminatory reason for her termination (failing a physical ability test following an ankle injury) was "pretext for discrimination."

In plaintiff's claims against her former employer for sexual harassment under the South Carolina Human Affairs Law, district court's grant of summary judgment in favor of the defendant is vacated and remanded where: 1) plaintiff properly exhausted the state administrative remedies; 2) plaintiff's lawsuit was timely filed; 3) judicial estoppel does not preclude plaintiff from pursuing her claims against defendant because she disclosed her potential claim against the defendant in her bankruptcy petition; 4) plaintiff's evidence is sufficient to require a trial on her sexual harassment claims, including her claim that she was constructively discharged; and 5) on remand, the defendant will be entitled to assert the affirmative defense to liability and damages as set forth by the Supreme Court in Faragher and Ellerth as, although defendant is subject to vicarious liability for the supervisor's conduct, there was no tangible employment action and no official act precipitating the asserted constructive discharge.

In plaintiff-former deputy's suit against a sheriff in his official capacity under Title VII for sexual harassment and in his individual capacity under Virginia law for battery, district court's substitution of new sheriff as the defendant in her official capacity in the Title VII claim and jury verdict in favor of plaintiff is affirmed as to accept defendant's argument that because each sheriff in Virginia is by state law a singular entity with an independent tenure, she could not be substituted in her official capacity as the successor to the former sheriff in the Title VII claim, would be to allow a state law to override Title VII in violation of the Supremacy Clause. Defendants' remaining challenges are rejected.

In an employment retaliation action under the whistleblower provision of the Sarbanes-Oxley Act, grant of defendant's motion to dismiss in favor of remand to the appropriate administrative body for further proceedings is vacated and remanded as the plain language of section 1514A(b)(1)(B) unambiguously establishes a Sarbanes-Oxley whistleblower complainant's right to de novo review in federal district court if the Department of Labor has not issued a final decision and the statutory 180-day period has expired

In an action brought by employees and their union against a poultry processing plant under the Fair Labor Standards Act (FLSA), judgment of the district court in favor of defendant is affirmed as the activity of donning and doffing protective gear constitutes "changing clothes" within the meaning of section 203(o) and is therefore not compensable under the prevailing customs or practices at the plant.

Fifth Circuit

Appeals from federal district (trial level) courts in Louisiana, Mississippi, and Texas

Held that it was appropriate to reduce an attorney fee award because the plaintiff had rejected a Rule 68 offer of judgment that would have given her more than what she ultimately obtained at trial. Affirmed the district court, in this Fair Labor Standards Act case.

Revived a railroad employee's claim that he was discriminated against based on a disability. The issue involved whether he could safely perform his job as a trainman after developing Parkinson's disease. Reversed a summary judgment ruling in relevant part.

Held that a police sergeant could move forward with his claims that he was subjected to a campaign of racial harassment, in violation of 42 U.S.C. sections 1981 and 1983. Affirmed the denial of the police chief's motion for judgment on the pleadings based on qualified immunity, in relevant part.

Held that the U.S. Secretary of Labor has authority under the OSHA statute to issue a citation to a general contractor at a multi-employer construction worksite who controls a hazardous condition at that worksite, even if the condition affects another employer's employees. Criticized a circuit precedent, Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir. 1981), which had held that the Act protects only an employer's employees.

Reinstated an employee's claim that he was fired for filing a workers' compensation claim, in violation of the Texas Labor Code. Reversed a judgment as a matter of law entered at the close of evidence at trial and remanded for a new trial on this particular claim.

Affirmed that a former high-level bank employee breached his severance agreement and violated the Computer Fraud and Abuse Act. Remanded for further proceedings on the bank's Louisiana Unfair Trade Practices Act claim in a lawsuit commenced after the employee, and some of the employees he supervised, departed to work at a competitor bank.

In a Fair Labor Standards Act (FLSA) action claiming that defendant-employer was required to reimburse plaintiffs for their travel expenses, visa fees, and recruitment payments during their first week of work, a denial of summary judgment for defendant is reversed where: 1) the FLSA did not require the reimbursement of the travel expenses; and 2) the FLSA did not require defendant to reimburse plaintiffs for the fees they paid to the various job placement firms.

In a Family and Medical Leave Act (FMLA) action based on plaintiff's alleged termination due to her epilepsy, summary judgment for defendant is reversed where the district court erred when it held plaintiff to defendant's heightened in-house procedure, and further, plaintiff provided the minimum required notice under FMLA's default requirements.

In a petition for review of a determination by the Occupational Safety and Health Commission (the Commission) that petitioner was not exempt from the Occupational Safety and Health Act (OSHA) under the provision of 29 U.S.C. section 652(5) stating that for purposes of the Act "'employer' . . . does not include . . . any . . . political subdivision of a State," the petition is granted where, under 29 C.F.R. section 1975.5(b)(2), petitioner was "administered by individuals who are controlled by public officials and responsible to such officials" and was thus exempt from OSHA.

In an action under the Fair Labor Standards Act (FLSA) based on defendants' failure to increase plaintiff's "per diem" hourly rate, judgment for plaintiff is affirmed in part where: 1) when, as here, the amount of per diem varies with the amount of hours worked, the per diem payments are part of the regular rate in their entirety; 2) there was no clear error in the district court's finding that the violation was willful; and 3) in paying the per diem, defendant did not pay plaintiff any additional sums that could be characterized as advanced or inappropriate amounts subject to an offset against the overtime owed to him. However, the judgment is vacated in part where the district court needed to provide additional explanation for its awards and with specific instructions to include time spent on this appeal in determining the amount of attorney's fees.

In an action claiming that the termination of plaintiff's employment violated Title VII and the Americans with Disabilities Act (ADA), judgment as a matter of law for defendant is reversed where: 1) plaintiff presented sufficient evidence that he was substantially limited in the major life activity of walking; and 2) there was no dispute that plaintiff was able to perform the essential functions of his job as a flight attendant when he showed up to work. In addition, the district court's order denying reinstatement is vacated in light of the Fifth Circuit's holding that it was error to grant defendant's motion for judgment as a matter of law.

In an action claiming that the termination of plaintiff's employment violated Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA), partial judgment for defendant is reversed where: 1) there was sufficient evidence for a reasonable jury to find that plaintiff was an "individual with a disability" within the meaning of the ADA, because there was sufficient evidence for a reasonable jury to conclude that he had an impairment, psoriatic arthritis, that substantially limited his major life activity of walking; 2) there was sufficient evidence that defendant's own actions reflected that attendance on scheduled days was not required to qualify for the position of flight attendant; and 3) a reasonable jury could have found defendant's proffered explanation for plaintiff's discharge was false and that the true reason was his disability.

In an action alleging sex discrimination against the director of certain medical clinics, judgment for plaintiffs is affirmed in part where: 1) the evidence of defendant's harassment of other parties was highly probative to demonstrating a systemic pattern of discrimination at the clinics and relevant to all plaintiffs; and 2) the court of appeals could not conclude that the hearsay testimony admitted by the district court had more than a slight effect on the jury's verdict. However, the judgment is reversed in part where one plaintiff's placement on a two-week probationary period did not rise to the level of a tangible employment action.

Sixth Circuit

Appeals from federal district (trial level) courts in Kentucky, Michigan, Ohio, and Tennessee

Whether the U.S. Court of Appeals for the 6th Circuit misinterpreted the Supreme Court's decision in M &amp; G Polymers USA, LLC v. Tackett, thus creating a conflict with the decisions of other circuits and within the U.S. Court of Appeals for the 6th Circuit itself, by employing rules of contract interpretation explicitly repudiated in Tackett to deem a general duration clause in the collective bargaining agreement ambiguous, and then using extrinsic evidence to hold the healthcare benefits of the retiree class vested for life.

The Court held that because the decision was not consistent with Tackett, the petition for a writ of certiorari and the motions for leave to file briefs amici curiae are granted. They reversed the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

See also: http://www.scotusblog.com/case-files/cases/cnh-industrial-n-v-v-reese/

In plaintiffs' suit against their former employer, claiming that the employer's drug testing policy violates the Americans with Disabilities Act, district court's holding that individuals do not need to be disabled to assert claims under section 12112(b)(6) is reversed in this interlocutory appeal where: 1) because the plain text of the statute requires that an individual bringing such a claim be disabled, and this interpretation is not "demonstrably at odds" with Congress's intent, the plain meaning controls; and 2) because the plaintiffs have not demonstrated that the district court's ruling on their putative claims under section 12112(d)(4) is inextricably intertwined with the certified issue, exercise of pendent appellate jurisdiction is declined.

In a teacher's section 1983 suit against a school board and other individuals, claiming that defendants had retaliated against her curricular and pedagogical choices, infringing her First Amendment right to select books and methods of instruction for use in the classroom without interference from public officials, district court's grant of defendants' motion for summary judgment is affirmed as the First Amendment does not protect primary and secondary school teachers' in-class curricular speech.

In plaintiff's suit against Kellogg Company on behalf of herself and all similarly situated employees to recover wages under the Fair Labor Standards Act (FLSA) for time spent donning and doffing Kellogg's mandatory food safety uniforms and protective equipment, and for time spent walking to and from the changing area and the time clock, district court's grant of summary judgment in favor of Kellogg is affirmed in part, reversed in part, and remanded where: 1) section 203 is not an exemption and therefore not an affirmative defense; 2) the items at issue are clothes within the meaning of section 203(o); 3) the evidence demonstrates that there was a custom or practice of nonpayment for time spent changing clothes under a bona fide CBA, and as such, time spent donning and doffing the equipment is excluded from "hours worked" under section 203(o); 4) under the continuous workday rule, plaintiff may be entitled to payment for her post-donning and pre-donning walking time, and as such, the matter is remanded because there are questions of fact as to the length of time it took her to walk from the changing area to the time clock and whether that time was de minimis.

In plaintiff's sexual harassment suit against her former employers seeking $250,000 in compensatory damages and $1 million in punitive damages, district court's grant of summary judgment in favor of the defendants based on a claim of judicial estoppel is affirmed where: 1) plaintiff asserted a position before the bankruptcy court that was contrary to the position that she asserted before the district court as she did not disclose her sexual harassment claim against defendants in her initial bankruptcy filings; 2) plaintiff had a motive to conceal and knowledge of the factual basis of her harassment claim; and 3) the evidence plaintiff presented of her attempts to advise the bankruptcy court and the trustee of her harassment claim does not excuse her initial omission.

In plaintiff's suit against her former employer and its subsidiary for pregnancy and disability discrimination, district court's grant of summary judgment in favor of defendants is affirmed in part, reversed in part and remanded where: 1) district court erred in granting summary judgment in favor of defendant on plaintiff's transfer claim as a reasonable jury could find that plaintiff's transfer to the tool room constituted an adverse employment action; 2) summary judgment was proper on plaintiff's pregnancy-discrimination claim based on plaintiff's termination; 3) district court erred in granting summary judgment in favor of the defendants on plaintiff's ADA claim to the extent it is based on the tool-room transfer; and 4) district court did not err in granting defendants' motion for summary judgment on plaintiff's disability claim based on her termination as plaintiff has presented no evidence that defendant regarded her as having an impairment that precluded her from working in the tool room.

In plaintiff's age discrimination suit against his former employer under the Age Discrimination in Employment Act and Ohio's anti-discrimination statute, district court's denial of defendant's Rule 50(b) motion and jury verdict in favor of the plaintiff are affirmed where: 1) district court did not err in allowing plaintiff's case to proceed to trial as the language in plaintiff's EEOC charge sets forth sufficient facts to put the EEOC on notice of plaintiff's retaliation claim despite his failure to check the "Retaliation" box on the charge; 2) plaintiff's judicial complaint set forth facts establishing a prima facie case of retaliation under the ADEA; 3) the totality of the evidence in the record does not lead reasonable minds to but one conclusion in favor of the defendant on the retaliation claim; 4) because plaintiff established the amount of his damages and defendant failed to prove by a preponderance of the evidence that plaintiff was not entitled to those damages, damages were properly awarded; and 5) the jury could have reasonably concluded that the supervisor's conduct was willful and therefore, liquidated damages were warranted.

In an employment discrimination and retaliation action brought by a teacher at a religious school claiming violations of the ADA, the district courts grant of summary judgment in favor of the defendant based on the "ministerial exception" is vacated and remanded as, given the factual findings relating to plaintiff's primary duties as a teacher, the district court erred in its legal conclusion classifying her as a ministerial employee.

In plaintiff's gender discrimination action under Title VII against the police department, summary judgment for defendants is reversed and remanded as plaintiff, a patrol officer and a seventeen-year veteran with the department, had arguably superior qualification than the two successful applicants who received the promotions as detectives and produced other probative evidence of gender discrimination.

In an action under the First Amendment and various employment statutes challenging defendant-Baptist Homes for Children's policy of firing and not hiring gay and lesbian employees, dismissal of the complaint is affirmed in part where the termination of plaintiff based on her sexual orientation did not constitute discrimination on account of religion. However, the ruling is reversed in part where plaintiffs sufficiently demonstrated standing as state taxpayers for their Establishment Clause challenge.

In an action claiming that defendant-employer impermissibly considered plaintiff's use of Family and Medical Leave Act (FMLA) leave in deciding to place her on involuntary leave, summary judgment for defendant is reversed where there was an issue of material fact as to whether the FMLA leave was a motivating factor in defendant's decision.

In a Title VII action claiming that Defendant failed to promote Plaintiff on the basis of her race and sex, summary judgment for Defendant is affirmed in part, where Plaintiff failed to raise a genuine issue of material fact as to whether Defendant's claim of mistake was a pretext for race discrimination; but reversed in part, where the combination of close temporal proximity between an employers heightened scrutiny and plaintiff's filing of an EEOC charge is sufficient to establish the causal nexus needed to establish a prima facie case of retaliation.

Seventh Circuit

Appeals from federal district (trial level) courts in Illinois, Indiana, and Wisconsin

Affirmed the dismissal of a race discrimination lawsuit brought by employees of a commuter railroad. Held that they failed to remedy deficiencies in their complaint despite having opportunities to amend.

The Seventh Circuit ruled Thursday that arbitration agreements containing class waivers are illegal, adopting the position of the National Labor Relations Board and creating a split with the Fifth Circuit that leaves the issue on the U.S. Supreme Court's doorstep.

In plaintiffs' suit against their employer under the FLSA, the Illinois Minimum Wage Law (IMWL), and the Illinois Wage Payment and Collection Act, claiming that the employer violated the minimum wage and maximum hour provisions of both the FLSA and the IMWL, district court's denial of plaintiffs' effort to proceed as a class under Rule 23(b)(3) on the ground that there is a clear incompatibility between the plaintiffs' FLSA proceeding and their proposed class action is reversed and remanded, as there is no categorical rule against certifying a Rule 23(b)(3) state law class action in a proceeding that also includes a collective action brought under the FLSA because nothing in the text of the FLSA or the procedures established by the statute suggests either that the FLSA was intended generally to oust other ordinary procedures used in federal court or that class actions in particular could not be combined with an FLSA proceeding.

In the Equal Employment Opportunity Commission's (EEOC) suit on behalf of defendant's former employee under the Americans with Disabilities Act, district court's grant of summary judgment on a failure-to-accommodate claim is reversed and remanded as the evidence the EEOC has presented is plainly susceptible to the determination that the employee had a disability within the meaning intended by the ADA as required to prove a failure to accommodate, and as such, summary judgment should not have been granted on that basis that the employee was not disabled.

In plaintiff's discrimination and retaliation suit against a college and three of its employees, claiming that she was not hired by the college because of her race and because her husband had previously filed a frivolous lawsuit against the same defendants, district court's grant of summary judgment in favor of the defendants is affirmed where: 1) plaintiff is not entitled to a favorable inference under the spoliation doctrine as there is no evidence that any of the defendants destroyed documents in bad faith; 2) district court correctly granted judgment in favor of the defendant on plaintiff's claim of racial discrimination in hiring as there is no evidence supporting her claim of pretext; and 3) plaintiff's claim of "marital association retaliation" cannot survive summary judgment because she has failed to provide any evidence that the defendants refused to hire her because of her marriage to her husband.

In a hospital employees' suit against the hospital, its Board of Trustees, its Chief Executive Officer, and another employee, for violation of the Wiretap Act, claiming that the employee intentionally intercepted their conversation criticizing hospital , and disclosed the contents of the recording to justify sanctioning the plaintiffs, district court's grant of summary judgment in favor of the defendants is affirmed in part, vacated in part and remanded where: 1) because the parties presented two different but plausible stories, an issue of fact remains, and as such, the claims against the employee and the hospital should not have been resolved on summary judgment; and 2) district court's grant of summary judgment on the claims against the CEO and the trustees is affirmed as the evidence does not show that the CEO knew that the employee acted unlawfully and the only trustee who might have known did not use or disclose the recordings.

In plaintiff's suit against a security firm, claiming that it violated Title VII when it did not hire him as a security guard because plaintiff would not cut his dreadlocks, judgment that defendant did not engage in religious discrimination when it refused to hire plaintiff on account of his dreadlocked hairstyle is affirmed where: 1) the court's decision to credit the interviewing manager's testimony that plaintiff never informed him that religious belief required him to wear dreadlocks is both plausible from the evidence and sufficiently explained in the opinion; 2) plaintiff waived his claim that the district court erred by preventing him from testifying about his EEOC intake questionnaire; and 3) plaintiff's claims that the district court erred when it granted summary judgment to defendant on the issue of whether he mitigated his damages and whether he was entitled to punitive damages are moot.

District court's reduction of an Illinois Department of Human Rights employee's fee award by 67%, accounting for the partial success of the employee's suit against the Director of the Department and the Comptroller of the State of Illinois for withholding portions of his salary without an adequate hearing, is vacated and remanded as, although it was entirely proper for the district court to conclude that plaintiff achieved only "partial" success and that the lodestar figure should thus be reduced to reflect this fact, the district court provided insufficient reasoning in support of its judgment.

In a Title VII action claiming that a nursing home's practice of acceding to the racial biases of its residents was illegal and created a hostile work environment, summary judgment for defendant is reversed where: 1) the racial preference policy violated Title VII by creating a hostile work environment; and 2) issues of fact remained over whether race motivated plaintiff's discharge.

In two lawsuits against the City of Chicago brought by paramedics, claiming that it willfully failed to properly compensate them for overtime, district court's grant of the City's motion for summary judgment is reversed and remanded as, the district court erred in dismissing the claims of the named plaintiffs as they have the right to proceed individually.

In plaintiff's suit against her former county employer for her termination two weeks before she was scheduled to begin two months of leave under the Family and Medical Leave Act (FMLA), claiming the employer interfered with her right to reinstatement under the Act and retaliated against her for taking FMLA leave, summary judgment in favor of defendants is reversed as plaintiff has put forth enough evidence for this case to reach a trier of fact, including comments suggesting her supervisor's dissatisfaction with her use of FMLA leave, her positive performance reviews, and the timing of her termination.

In plaintiff's suit against her former employer under the Family and Medical Leave Act, 29 U.S.C. section 2601, district court's grant of summary judgment in favor of the employer is affirmed where: 1) plaintiff's claim that she is entitled to toll the 12-month period for the 56 days during that period in which she was on FMLA leave is rejected as there is no basis for such a contortion of the statute; and 2) plaintiff's argument that the defendant retaliated against her for taking FMLA leave fails as defendant's no-fault attendance policy is a lawful method of determining whether an employee has a sufficiently strong commitment to working for his employer to wipe an absence off his record, and plaintiff has failed to demonstrate that commitment.

In plaintiff's employment discrimination suit against his former employer, summary judgment in favor of defendant is affirmed in part, reversed in part and remanded where: 1) the judgment of the district court is affirmed to the extent that it dismissed plaintiff's ADA claims, his overtime claims, and his Title VII retaliation claim; but 2) judgment of the district court with respect to plaintiff's hostile-workplace claim based on alleged sexual harassment is reversed and remanded as the court dismissed the claim after excluding most of the alleged instances of harassment as time-barred, contrary to Supreme Court precedent establishing that in a hostile-workplace claim, acts of harassment falling outside Title VII's statute of limitations may be considered as long as some act of harassment occurred within the limitations period.

In an action under the Fair Labor Standards Act brought by truck drivers against a wholesale importer and distributor of wine claiming that they were not paid overtime, judgment for the defendant is affirmed as the portion of the transportation that is entirely within Illinois is nevertheless interstate commerce within the meaning of the Motor Carrier Act and therefore, the Fair Labor Standards Act exempts from its overtime provisions any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of title 49.

In plaintiff&prime;s suit on behalf of himself and all others similarly situated, seeking compensation for the time spent changing clothes and showering at the end of each work shift at defendant\&prime;s paper mill, summary judgment in favor of defendant is affirmed where: 1) plaintiffs&prime; daily post-shift activities are done under normal conditions and are merely postliminary non-compensable activities; and 2) the district court did not abuse its discretion in denying plaintiff\&prime;s motion to reconsider in concluding that plaintiff merely rehashed the arguments he had made at summary judgment and failed to present evidence of extraordinary and exceptional circumstances under Rule 60(b)(6).

In plaintiff&prime;s suit against his employer under the Jones Act and general maritime law for injuries he suffered while working as a deckhand, defendant-employer&prime;s appeal of a district court&prime;s denial of its motion to stay the suit in favor of arbitration is dismissed for lack of jurisdiction under 9 U.S.C. section 16(a)(1)(A) as: 1) section 16 is part of the Federal Arbitration Act, and as such, under the language of section 1, does not apply to any employment contract involving a seaman; and 2) section also is inapplicable, and defendant&prime;s motion for a stay did not rely on it.

In plaintiff-police officer&#039;s ADA claim against defendant-village, dismissal of his case on the ground of judicial estoppel is affirmed where: 1) to succeed on an ADA claim, a plaintiff must show that with or without reasonable accommodations, he can perform the essential functions of his job; and 2) here, accepting plaintiff&#039;s sworn testimony before the pension board as true, the court could not see how he could perform essential police functions with or without accommodations.

In plaintiff's disability discrimination action against his former employer, district court's grant of summary judgment in favor of the defendant-employer is affirmed in part, reversed and vacated in part, and remanded where: 1) the disability-discrimination claim is remanded as, although plaintiff's impairments are not sufficient to show that he is disabled, the record contains adequate evidence to support a theory that defendant regarded him as being disabled in the major life activities of walking, caring for himself, and speaking; 2) district court's summary judgment on the reasonable-accommodation claim is affirmed; 3) district court's denial of plaintiff's motion to compel discovery on certain issues is reversed; and 4) award of sanctions is vacated because the magistrate judge unreasonably imposed them in response to plaintiff's discovery requests.

In plaintiff's lawsuit against her former employer claiming that school district failed to accommodate her seasonal effective disorder and constructively discharged her in violation of the ADA, judgment of the district court is reversed in part and affirmed in part where: 1) district court's grant of summary judgment on the failure-to-accommodate claim is reversed as plaintiff satisfied all three elements required for the claim; and 2) summary judgment on the constructive-discharge claim was proper as plaintiff failed to show that the conditions of her employment even approached the intolerable levels normally required in constructive-discharge cases.

In an employment-discrimination case, district court's grant of summary judgment for defendant on grounds that the plaintiff failed to timely file a charge with the EEOC is vacated and remanded where defendant failed to show absence of a genuine factual dispute over whether plaintiff's charge had been timely filed via fax where it was not the plaintiff who had to prove receipt, but the defendant who had to prove the absence of receipt - the fax confirmation creates a factual dispute sufficient to preclude summary judgment.

Eighth Circuit

Appeals from federal district (trial level) courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota

Cellular Sales petitions for review of the Board's determination that it violated the National Labor Relations Act (NLRA), 29 U.S.C. 157, 158(a)(1). The court concluded that Cellular Sales did not violate section 8(a)(1) by requiring its employees to enter into an arbitration agreement that included a waiver of class or collective actions in all forums to resolve employment-related disputes. Therefore, the court granted the petition for review and declined to enforce the Board&rsquo;s order with respect to this issue. Because the class-action waiver did not violate section 8(a)(1), Cellular Sales&rsquo;s attempt to enforce the class-action waiver likewise did not violate section 8(a)(1). Therefore, the court granted the petition for review and declined to enforce the Board&rsquo;s order with respect to this issue. The court also declined to enforce the Board&rsquo;s remedies related to this issue. Because Cellular Sales&rsquo;s unlawful arbitration agreement remained in effect and governed a former employee both as a current and as a former employee during the section 10(b) limitations period, his unfair labor practice charge was not time-barred. Accordingly, the court granted in part and denied in part the petition for review, and denied in part and enforced in part the Board's order

In an action claiming that plaintiff was wrongfully terminated from her position as the Public Safety Auditor for the City of Omaha after she published a report criticizing the Omaha Police Department, summary judgment for defendants is affirmed where the evidence did not support a finding that plaintiff reasonably believed that she opposed an unlawful employment practice by publishing her report.

In an action for sexual harassment and retaliation in violation of the Missouri Human Rights Act, judgment for defendant is affirmed where: 1) plaintiff's supervisor treated all employees, both male and female, in the same vulgar and inappropriate way; and 2) plaintiff effectively waived any objection to defendant's motion in limine.

In an action alleging that defendant violated the Age Discrimination in Employment Act (ADEA) and the Iowa Civil Rights Act (ICRA) by terminating plaintiff's employment because of her age, judgment for plaintiff is affirmed where: 1) the jury's award of damages was supported by the finding of liability under the ICRA, and the incorrect statement of the law under the ADEA did not prejudice defendant; and 2) the district court expressly considered the factors relevant to determining a reasonable fee award under Iowa law, and made findings of fact regarding those factors.

In an action by the EEOC claiming that defendant failed to hire a prospective employee because of her race in violation of Title VII, summary judgment for defendant is affirmed where plaintiff's evidence was insufficient to allow a reasonable jury to infer that defendant did not have a policy of automatically disqualifying applicants with theft-related convictions, and a reasonable jury would conclude that such a policy existed.

In an action under 42 U.S.C. section 1981 and Title VII of the Civil Rights Act of 1964 claiming discrimination (non-selection), harassment (supervisor and co-worker), and retaliation, judgment for plaintiff is affirmed where: 1) a reasonable juror could find that plaintiff did not unreasonably fail to take advantage of preventative/corrective opportunities offered by defendant, and thus defendant was not entitled to judgment as a matter of law on the Ellerth-Faragher affirmative defense; 2) the testimony regarding plaintiff's emotional distress was sufficient to allow a reasonable juror to award plaintiff $65,000 in compensatory damages; and 3) any issue with the magistrate judge presiding over the punitive damages portion of the trial was moot.

In an action against Ford Motor Company alleging wrongful discharge under the Missouri common law public policy exception to the employment at-will doctrine, summary judgment for defendant is affirmed where plaintiff's complaint never alleged a violation of a specific legal provision and whether such legal provision involved a clear mandate of public policy, and plaintiff's belated affidavit discussing alleged violations of law directly contradicted both his complaint and interrogatories.

In an action by the EEOC alleging that defendant employment agency discriminated against a Muslim by failing to refer her to an employer because of her refusal to remove her khimar for work, summary judgment for defendant is affirmed where the EEOC failed to show that the employer had an available position to which defendant could actually refer the candidate when she applied for available temporary work.

In a race discrimination action, summary judgment for defendant-employer is reversed where: 1) plaintiff was not required to disprove defendant's reason for firing him at the stage of the analysis where plaintiff needed to show that he met his employer's legitimate expectations; and 2) there were material factual disputes over plaintiff's attendance and availability record, and whether defendant applied its policies equally.

In a 42 U.S.C. section 1983 action based on a sheriff's alleged failure to provide sexual harassment training to a subordinate, judgment for plaintiff is reversed where: 1) the Arkansas Code did not impose a duty on the county to train its officers not to sexually assault detainees; and 2) there was nothing in the record suggesting that defendant received any notice of a pattern of unconstitutional acts committed by any of his subordinates.

In a 42 U.S.C. section 1983 action based on a sheriff's alleged failure to provide sexual harassment training to a subordinate, judgment for plaintiff is reversed where: 1) the Arkansas Code did not impose a duty on the county to train its officers not to sexually assault detainees; and 2) there was nothing in the record suggesting that defendant received any notice of a pattern of unconstitutional acts committed by any of his subordinates.

In a sex discrimination action, summary judgment for defendant is reversed where: 1) plaintiff's supervisor's criticism of plaintiff for lack of "prettiness" and the "Midwestern girl look" before terminating her could be found by a reasonable factfinder to be evidence of wrongful sex stereotyping; and 2) the district court erred in requiring plaintiff to offer evidence that similarly situated men were treated differently.

In an Age Discrimination in Employment Act (ADEA) action claiming that defendant demoted plaintiff because of his age, judgment for plaintiff is reversed where the burden of persuasion should not have been shifted to the defendant in this ADEA case considering that plaintiff never set forth any direct evidence of age discrimination, and the jury instruction at issue impermissibly shifted the burden in such a manner.

In a case involving whether, after NFL quarterback Michael Vick was convicted of dog fighting charges, his team was entitled to recover certain bonus money he earned, rulings against the NFL are affirmed where: 1) the district court properly rejected the NFL's argument that Vick's roster bonuses were signing bonus allocations subject to the years-performed test; and 2) it did not err in determining that the bonuses were earned when Vick met the roster provisions in his contract, and were thus not subject to forfeiture pursuant to the terms of a settlement in an antitrust class action and the CBA. Moreover, the denial of the NFL's motion to recuse the district judge and terminate the consent decree is affirmed where 1) there was no indication that the NFL was restrained by any fear of antitrust liability; 2) the parties' agreement to the district court's involvement mitigated concerns about unsettling the power structure under the labor laws; and 3) the district judge's comments to the press did not create an appearance of partiality.

In an age discrimination action based on an alleged wrongful termination, summary judgment for defendant is reversed where there was evidence that people who participated in the decision to terminate plaintiff evinced a preference for the employment of younger workers over persons in the class protected by the Age Discrimination in Employment Act.

In former college president's action against the college's Board of Trustees alleging violation of his state and federal statutory and constitutional rights, denial of defendant's motion for qualified immunity is affirmed where plaintiff's employment was terminated in an open session of the Board for alleged misconduct including dishonesty - an accepted stigmatizing charge - and thus, plaintiff sufficiently demonstrated a violation of his clearly established due process right to a post-termination name-clearing hearing.

In an employment and sex discrimination case under Title VII, district court\'s judgment is reversed in part and remanded where: 1) district court erred in not submitting plaintiff\'s claim for punitive damages to the jury and granting defendant judgment as a matter of law on that claim as under Title VII, punitive damages are available if a plaintiff shows that the employer engaged in intentional discrimination with malice or with reckless indifference to the federally protected rights, and evidence presented by the EEOC at trial was sufficient for a jury to find that defendant acted in the face of a perceived risk that it was violating plaintiffs\' Title VII rights; 2) district court did not abuse its discretion in denying EEOC\'s request for injunctive relief to enjoin defendant from discriminating on the basis of pregnancy or retaliating against any employee who complains of unlawful discrimination as, in light of the two isolated instances of discrimination, there was not a consistent practice of discrimination suggesting further discrimination was likely; 3) court declined to address the district court\'s award of attorney\'s fees at this time as further proceedings are necessary on the issue of punitive damages.

Modified a nationwide injunction relating to contraceptive coverage under the Affordable Care Act. When several states sued to block federal regulations on group plan contraceptive coverage that exempt employers with religious or moral objections, the district court issued a nationwide preliminary injunction. On appeal, the Ninth Circuit affirmed the injunction but held that the record did not support its nationwide scope. The panel vacated the portion of the injunction barring enforcement of the regulations in states other than the plaintiff states.

In a Department of Labor civil enforcement action, affirmed that a union trust fund's trustee and legal counsel unlawfully retaliated against a whistleblower in violation of ERISA. However, reversed a bench trial finding that they breached ERISA fiduciary duties.

Vacated a judgment entered after trial that a train conductor was unlawfully fired because he refused to stop performing a safety test on a train he was tasked with moving. Remanded for further proceedings regarding the contributing-factor element of his Federal Railroad Safety Act retaliation claim.

Held that the district court erred in remanding a class action to state court under the Class Action Fairness Act's local-controversy exception. The plaintiff argued that her wage-hour class action against a fast-food chain belonged in state court because more than two-thirds of the putative class members were California citizens. Unconvinced, the Ninth Circuit reversed and remanded for additional discovery regarding how many former employees had moved to other states, among other things.

Held that federal labor law did not preempt retired football players' claims that the National Football League encouraged them to take pain-masking medications without warning them of the drugs' risks. The NFL contended that the players' claims were preempted by sections 301 of the Labor Management Relations Act. Rejecting the league's argument, the Ninth Circuit concluded that, as pleaded, the players' negligence and other state law claims did not arise from collective bargaining agreements or require their interpretation. The panel therefore reversed dismissal of the proposed class action suit.

Reinstated claims brought by retired county employees alleging that the county government violated their vested rights when it restructured its health benefits program. The class-action complaint challenged two reforms made by the county in 2006 that the retirees said violated the county's contractual obligations to them. On appeal, the Ninth Circuit held that the district court erred in dismissing certain of retirees' contract claims. However, the panel affirmed dismissal of the retirees' age discrimination claim.

Reinstated a police department community service officer\'s claim that she was subjected to an unconstitutional prior restraint on speech after she made certain public comments that displeased the police chief. The officer argued that the chief could not constitutionally require her to sign a last-chance agreement that barred her from saying or writing anything negative about the police department or the city, even as a private citizen. Agreeing with her, the Ninth Circuit reversed summary judgment in relevant part and remanded for further proceedings on her First Amendment prior restraint claim.

Ordered a remand to state court of a Marriott Hotel employee's lawsuit contending that he and other employees were paid less than the City of San Jose's $10/hour minimum wage. Marriott had removed the case to federal court on the basis that the claims were preempted by federal labor law. On appeal, the Ninth Circuit held that the employee's lawsuit must be returned to state court because the case amounted to an interpretive challenge to the San Jose minimum-wage ordinance, not one that required substantial analysis of the collective-bargaining agreement.

Affirmed that a railway company violated the Americans with Disabilities Act but vacated the issuance of a nationwide injunction. The company had required a job applicant to submit an MRI exam at his own expense as part of a post-offer medical review. On appeal, the Ninth Circuit affirmed that the company's action violated the ADA but remanded with instructions to make further factual findings in order to establish the proper scope of the injunction.

Reversed a denial of benefits under the Longshore and Harbor Workers' Compensation Act. An employee argued that he was entitled to receive workers' compensation benefits for a permanent and disabling on-the-job injury even though he had already taken early retirement from his job. On review of the Benefits Review Board's denial of his claim for benefits, the Ninth Circuit held that his decision to retire early did not make him ineligible for workers' compensation benefits under the Act. The panel therefore reversed the administrative decision and remanded.

Held that the federal Railway Labor Act (RLA) did not preempt a flight attendant's claim against an airline. The flight attendant alleged that her employer had violated her state law right to take family medical leave. She argued that her claim was not preempted by the RLA, which covers airlines. In an en banc 6-5 decision, the Ninth Circuit agreed with her that there was no preemption.

Affirmed in part and vacated in part the dismissal of antitrust and state law claims of golf caddies who participated in the PGA Tour, who were required to wear bibs containing advertisements. The court reasoned that the caddies consented to wearing the bibs when they filled out the participation form and that they had not alleged plausible product markets to support antitrust claims. The court, however, vacated the decision to deny leave to amend caddies&rsquo; complaint

Affirmed that Taco Bell Corp. did not violate its employees' rights to meal breaks when it provided a special offer that employees could purchase a meal from the restaurant at a discount, as long as they ate the meal in the restaurant. An employee argued that Taco Bell should pay employees for their time because the company required them to eat the discounted meal in the restaurant; the idea behind the offer related to deterring theft. However, the Ninth Circuit found no violation of California meal break requirements, and affirmed summary judgment against the proposed class claim.

Reversing a district court dismissal of claims that an ordinance authorizing collective bargaining between driver coordinators like Uber and Lyft violates and is preempted by the Sherman Antitrust Act because the act sanctions price fixing by private cartels of independent contractor drivers but affirming the dismissal of claims that the ordinance was preempted by the National Labor Relations Act and remanding for further proceedings.

Granting a petition for review, vacating an order of the National Labor Relations Board and remanding to award standard make-whole relief in a case involving a Las Vegas hotel and casino's unilateral termination of culinary and bartending unions without bargaining to agreement or impasse because the Board abused its discretion when it only awarded prospective-only relief instead of the standard make-whole relief.

Respondent Paul Somers alleges that petitioner Digital Realty Trust, Inc. (Digital Realty) terminated his employment shortly after he reported to senior management suspected securities-law violations by the company. Somers filed suit, alleging, inter alia, a claim of whistleblower retaliation under Dodd-Frank. Digital Realty moved to dismiss that claim on the ground that Somers was not a whistleblower under &sect;78u&ndash;6(h) because he did not alert the SEC prior to his termination. The District Court denied the motion, and the Ninth Circuit affirmed. The Court of Appeals concluded that &sect;78u&ndash;6(h) does not necessitate recourse to the SEC prior to gaining &ldquo;whistleblower&rdquo; status, and it accorded deference to the SEC&rsquo;s regulation under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837. Digital Realty appealed the decision to the Supreme Court. The Supreme Court, in a unanimous decision held that Dodd-Frank&rsquo;s anti-retaliation provision does not extend to an individual, like Somers, who has not reported a violation of the securities laws to the SEC.

Reversing the district court's summary judgment in favor of the defendants in a former probation officer's claim of the violation of her rights to privacy and intimate association and affirming the grant of summary judgment on the former officer's due process and gender discrimination claims in a case involving an internal affairs investigation that turned up a romance between officers because a genuine factual dispute existed regarding whether the relationship and termination had a connection to negative job performance.

Denying a motion to dismiss for lack of jurisdiction a class action complaint alleging wage and hour violations because, as in Microsoft Corp. v. Baker the plaintiffs had voluntarily settled some of their claims, but the mutual considerations in the instant case did not raise the same concerns as in Baker because the plaintiffs here continued to litigate their remaining claims.

Affirming the district court's summary judgment in favor of the defendants in an action brought by call center workers under the Fair Labor Standards Act and deciding that minimum-wage compliance should be determined on a per-workweek rather than a per-individual hour basis in a case involving Xerox's complicated payment system that paid a variety of different wages for different work activities.

In a labor and employment action, the district court's order denying an adjustment in plaintiff's damages award from a successful discrimination suit, to account for increased tax liabilities from his lump-sum back-pay award, is vacated and remanded where district courts may, at their discretion, 'gross up' a lump-sum payment in employment discrimination suits to account for a prevailing employee's resulting increased tax liability.

In a labor law action, brought by a FedEx Express pilot returning from active duty service in the Air Force and seeking payment of a larger signing bonus he would have been entitled to without his service interruption, the district court's judgment for plaintiff is affirmed where the district court properly applied the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. section 4311(a), to plaintiff's claims.

A mixed decision that partially affirmed, vacated, and remanded aspects of the trial, judgment, and resulting awards of fees and costs was issued in the case of three Latino police officers who won a jury trial in which they alleged that the City of Westminster and former police chiefs discriminated and retaliated against them on the basis of race and national origin.

Reversing the grant of summary judgment to the plaintiff pursuant to the district court's erroneous ruling that a school district violated a principal's due process rights when it failed to comply with procedures required under state law relating to the reduction of his salary and holding that the court lacks jurisdiction to review the denial of qualified immunity as to First Amendment retaliation claims.

Reversing an order affirming the denial of disability benefits by the Commissioner of the Social Security Administration and remanding for the calculation and award of benefits to a morbidly obese former security guard who suffered from a wide range of relatively minor illnesses where the court improperly rejected the medical opinion of her treating physician and erroneously discounted her testimony relating to symptoms.

Reversing the district court's grant of summary judgment to the defendant in an action under the Fair Labor Standards Act and holding that mortgage underwriters are entitled to overtime compensation for work in excess of 40 hours a week because the primary job duty did not relate to the employer bank's management or general business operations, so that the administrative employee exemption did not apply.

Affirming the district court's dismissal of a former Orange County Department of Education employee's Fourteenth Amendment and breach of contract claims, finding that the OCDE is entitled to sovereign immunity.

In an action brought by two firefighter captains under the Age Discrimination in Employment Act, brought against a political subdivision, the district court's summary judgment in favor of defendants is reversed where a political subdivision of a State need not have twenty or more employees in order to qualify as an employer subject to the requirements of the ADEA.

On remand from the U.S. Supreme Court, in an action challenging the EEOC's issuance of an administrative subpoena requesting 'pedigree information' (name, Social Security number, last known address, and telephone number) for employees or prospective employees who took an employer's physical capability strength test, as part of an investigation of a sex discrimination claim, the district court's order denying the enforcement of the subpoena is vacated where the district court abused its discretion because the information was relevant to the EEOC's investigation.

In an ERISA action challenging a decision to terminate the plaintiff's long-term disability benefits, the district court's judgment after bench trial in favor of defendants is reversed where: 1) de novo review was required under California Insurance Code section 10110.6, which voided the discretionary clause contained in the plan; 2) section 10110.6 is not preempted by ERISA because it falls within the savings clause set forth in 29 U.S.C. section 1144(b)(2)(A); and 3) section 10110.6 applied to the plaintiff's claim because the relevant insurance policy renewed after the statute's effective date.

In an employment discrimination dispute between a garbage truck driver and his employer of 32 years, the district court's judgment is: 1) reversed as to grant of summary judgment to employer-defendant on the wrongful termination claim under California law based on age discrimination and retaliation, where the district court erred in holding that plaintiff failed to establish a prima facie age discrimination claim; and 2) affirmed as to the district court's denial of plaintiff's request for leave to amend the complaint.

In an action under Title VII and the California Fair Employment and Housing Act, in which county correctional officer alleged that the county sheriff created a sexually hostile work environment, the district court's grant of summary judgment in favor of defendants is reversed where: 1) a reasonable juror could conclude that differences in the sheriff&rsquo;s hugging of men and women were not, as the defendants argued, just 'genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and the opposite sex.' and 2) the district court's contrary conclusion may have been influenced by application of incorrect legal standards.

In an employment action alleging gender discrimination claims under Title VII and the Idaho Human Rights Act, a claim under the Consolidated Omnibus Budget Reconciliation Act, and wage claims under the Fair Labor Standards Act and the Idaho Wage Claim Act, the district court\'s grant of summary judgment to employer-defendant is reversed where: 1) as to the gender discrimination claims, plaintiff presented sufficient evidence that defendant\'s proffered reasons for terminating her were pretextual because she offered ample direct evidence of discriminatory animus, as well as specific and substantial indirect evidence challenging the credibility of defendant\'s motives; 2) as to the COBRA claim, there was a genuine dispute of fact regarding the true reason for the plaintiff\'s termination; and 3) summary judgment was improper on the state and federal wage claims.

In an action brought by a millwright under Title VII, 42 U.S.C. section 1981, and Oregon state law, alleging that during the course of his employment, he was subjected to disparate treatment and a hostile work environment because of his race or national origin, the district court's grant of summary judgment in favor of defendant employer is: 1) reversed in part as to the hostile work environment claim,including employer liability through negligence, the disparate treatment claim with regard to the breaking of the plaintiff&rsquo;s lock and the termination of his employment, the retaliation claim with regard to the termination of the plaintiff&rsquo;s employment, and corresponding state law claims; and 2) affirmed in all other respects.

On remand from the U.S. Supreme Court, in action brought under the Fair Labor Standards Act against an automobile dealership, the district court's dismissal of the action is: 1) reversed as to dismissal of a federal claim for overtime compensation, where service advisors do not fall within an exemption from the FLSA's overtime-compensation requirement for 'any sales man, partsman, or mechanic primarily engaged in...servicing automobiles,' 29 U.S.C. section 213(b)(10)(A); and 2) affirmed as to dismissal of plaintiffs' other federal claims and reversed as to the dismissal of state-law claims for reasons given in an earlier opinion.

In a state equal employment case alleging a hostile work environment against plaintiff's employer, asserting, among other claims, a state law gender-based hostile work environment claim, the District Court's judgment is reversed where the District Court erred erred in holding that an employee's state law gender-based hostile work environmental claim was preempted under section 301 of the Labor Management Relations Act (LMRA).

In a claim under section 301 of the Labor Management Relations Act, arising out of a reduction in workforce, the District Court&rsquo;s grant of summary judgment to union defendant, plaintiff's former union, is reversed where: 1) the Seniority Agreement, which had been negotiated on her behalf by a union representative, was neither inadmissible under the parol evidence rule nor superseded by the 2008 CBA; and 2) plaintiff also established a triable issue whether the union breached its duty of fair representation by processing her grievance in a perfunctory manner.

In an action brought pursuant to 42 U.S.C. section 1983 by the widow and daughters of a deceased employee of the Health District, who died allegedly from toxic mold in his workplace, the district court's order, on summary judgment, denying qualified immunity to two employees of the Clark County Health District is reversed where: 1) the court jurisdiction to decide whether the evidence demonstrated a violation by the defendant employees, and whether such violation was in contravention of federal law that was clearly established at the time; 2) plaintiffs had shown a violation of a constitutional right, grounded in the Fourteenth Amendment's Due Process Clause, to be free of state-created danger; but 3) the court improperly denied qualified immunity because it was not clearly established, at the time of the unconstitutional actions, that the state-created danger doctrine applied to claims based on physical conditions in the workplace.

In actions brought by two former Uber drivers on behalf of themselves and a proposed class of drivers, alleging defendant's violation of the Fair Credit Reporting Act (FCRA) and other state laws, the District Court's denial of defendant's motion to compel arbitration is: 1) affirmed in part as to the denial of a motion to compel arbitration filed by an independent background check company also named in the complaint; and 2) reversed in part where a) the district court erred in assuming the authority to decide whether the parties' arbitration agreements were enforceable, b) the question of arbitrability as to all but plainitiff Gillette's California Private Attorney General Act (PAGA) claim was delegated to the arbitrator, c) under the terms of the agreement plaintiff Gillette signed, the PAGA waiver should be severed from the arbitration agreement and Gilette's PAGA claim may proceed in court on a representative basis, and d) all of plaintiff Mohamed's remaining arguments, including both plaintiff's challenge to the PAGA waiver in the agreement he signed and the challenge by both plaintiffs to the validity of the arbitration agreement itself, were subject to resolution via arbitration.

In a dispute resolution and arbitration action, arising from a bar on concerted legal claims contained in the employment contracts of defendant Ernst &amp; Young, the district court's order compelling individual arbitration is vacated where an employer violates sections 7 and 8 of the National Labor Relations Act when it requires employees to sign an agreement precluding them from brining, in any forum, a concerted legal claim regarding wages, hours, and terms of conditions of employment.

In a suit brought by a City employee who alleged that he was fired for planning to testify against the City in a lawsuit relating to age discrimination, the District Court's grant of summary judgment to defendant is vacated and remanded where: 1) plaintiff was engaged in speech as a citizen for First Amendment purposes because his sworn statements and imminent testimony about the City's retaliatory conduct were outside the scope of his ordinary job duties and were on a matter of public concern; and 2) he retaliation provision of the Age Discrimination in Employment Act (ADEA), did not preclude plaintiff&rsquo;s 42 U.S.C. section 1983 First Amendment retaliation claim.

In a class action brought by plaintiffs are individuals who enrolled in defendant's cosmetology program, alleging violations of state labor law and the Fair Labor Standards Act (FLSA), the district court's denial of defendants' motion to compel arbitration is affirmed where the defendants waived their right to arbitration by their litigation conduct.

In a case in which an employer-plaintiff filed an unfair labor practice charge against a union, and the National Labor Relations Board issued a Notice of Hearing under section 10(k) of the National Labor Relations Act, which directs the Board to hear and determine disputes concerning unfair labor practice charges, the District Court's grant of summary judgment to plaintiff is reversed where the District Court lacked subject matter jurisdiction to vacate an interlocutory decision of the Board issued under section 10(k).

In a class action alleging violations of California's minimum wage and hour laws, the District Court's order granting class certification under Fed. R. Civ. P. 23 to a plaintiff representing a class of former and current sales associates of Stoneledge Furniture, LLC is affirmed where: 1) plaintiff established commonality, as required by Fed. R. Civ. P. 23(a), and the District Court permissibly concluded that plaintiff pleaded a common injury capable of class-wide resolution; 2) plaintiff established the predominance of class claims, as required by Fed. R. Civ. P. 23(b)(3), and the District Court permissibly ruled that individual claims did not predominate in this case; and 3) class certification did not alter the parties' substantive rights, and the District Court did not violate the Rules Enabling Act in certifying the class.

In an employment action brought by the EEOC and the Arizona Civil Rights Division against defendant Geo Group for violating the employment rights of its female employees, the district court's grant of summary judgment to defendant is vacated where: 1) plaintiffs sufficiently conciliated their class claims against defendant in light of Mach Mining, LLC v. EEOC, 135 S.Ct. 1645 (2015); 2) plaintiffs can maintain their claims on behalf of aggrieved employees provided that the employee has alleged at least one act of misconduct that occurred within 300 days prior to the date the first aggrieved employee filed her charge against defendant; and 3) an aggrieved employee is not required to file a new charge of discrimination with the EEOC if her claim is already encompassed within the Reasonable Cause Determination or is like or reasonably related to the initial charge.

In a tax action, the district court's entry of judgment on the pleadings to the government is affirmed where temporary foreign workers in the Commonwealth of the Northern Mariana Islands (CNMI) and their employers are required to pay FICA taxes under section 606(b) of the Covenant governing relations between the U.S. and the CNMI.

In a labor action, the district court's dismissal of plaintiff union's petition to compel arbitration and grant of summary judgment to defendant is reversed where the six-month statute of limitations period for filing a petition to compel arbitration under Section 301 of the Labor Management Relations Act, 29 U.S.C. section 185, started to run upon defendant's official reply to the plaintiff's letter demanding arbitration and not an earlier email.

In a subpoena enforcement action arising from an NLRB dispute between the United Food and Commercial Workers Union and defendant Fresh &amp; Easy over alleged unfair labor practices, the district court's judgment for petitioner union is affirmed on other grounds where petitioner's failure to serve the subpoena on Fresh &amp; Easy's counsel of record made service defective but no prejudice to defendant resulted.

In an action alleging that the U.S. Department of Homeland Security discriminated against plaintiff, a U.S. Border Patrol agent, by refusing to promote him on the basis of age in violation of the Age Discrimination in Employment Act, 29 U.S.C. section 623(a)(1), the district court's grant of summary judgment for defendant is reversed where: 1) plaintiff established a prima facie case that defendant considered age to be significant in making promotion decisions; and 2) plaintiff raised a genuine dispute of material fact as to whether defendant's nondiscriminatory reasons for not promoting him were pretextual.

In an employment action raising the question of whether the Federal Arbitration Act (FAA) preempts California law barring waiver of representative claims under the Private Attorneys General Act of 2004 (PAGA), as announced in Iskanian v. CLS Transportation Los Angeles, 59 Cal. 4th 348 (2014), the district court's granting of defendant's motion to compel arbitration and dismiss the amended complaint is reversed and where Iskanian does not obstruct the FAA's objectives and is not preempted by the FAA.

In an action challenging Seattle's minimum wage law with regard to classifying franchisees as large employers subject to steeper wage raise increments, the district court's denial of plaintiff's motion for preliminary injunction is affirmed where plaintiff did not show that it was likely to succeed on the merits or that an preliminary injunction is in the public interest.

In an ERISA case, the district court's judgment, after a bench trial, holding that a construction industry employer was not subject to "withdrawal liability" under the Multiemployer Pension Plan Amendment Act (MPPAA), is reversed where: 1) a bona fide successor employer in general and a construction industry successor employer in particular, can be subject to MPPAA withdrawal liability, so long as the successor took over the business with notice of the liability; and 2) the most important factor in assessing whether an employer is a successor for purposes of imposing MPPAA withdrawal liability is whether there is substantial continuity in the business operations between the predecessor and the successor, as determined in large part by whether the new employer has taken over the economically critical bulk of the prior employer's customer base.

In a wrongful termination dispute involving an executive employment agreement containing an arbitration clause, the district court's judgment is: 1) affirmed as to dismissal of plaintiff's diversity action in favor of arbitration; and 2) reversed at to denial, as moot, of employer-defendant's motion for reconsideration of its motion to seal plaintiff's complaint.

In an action by a border patrol agent alleging violation of the Age Discrimination in Employment Act (ADEA), the district court's grant of summary judgment in favor of the US Department of Homeland Security is reversed where plaintiff has established a prima facie case of age discrimination.

In a labor dispute over the pilot seniority list of two airlines that merged in 2005, the district court's judgment is: 1) reversed as to the conclusion that union-defendant did not violate its duty of fair representation to the plaintiffs; and 2) vacated as moot the portion of the district court's decision denying the plaintiffs separate representation in the McCaskill-Bond proceedings.

In a Title VII action, alleging unlawful discrimination against male correction officers on the basis of sex by designating a number of female-only correctional positions in women's prisons, the district court's grant of summary judgement in favor of defendant is affirmed where the Department's individualized, well-researched decision to designate discrete sex-based correctional officer categories was justified because sex was a bona-fide occupational qualification reasonably necessary to the normal operation of the women's prisons.

In an union's action against an airline under the Railway Labor Act (RLA), the district court's preliminary injunction, enjoining the airline from making policy changes to pilot work rules during the negotiation of a new contract between the union and airline following the National Mediation Board's certification of the union as the pilot's representative, is vacated where the court erred in entering an injunction because the RLA does not require an airline to maintain the status quo during negotiations of an initial labor agreement

In a diversity action alleging disability discrimination under California's Fair Employment and Housing Act (FEHA), summary judgment in favor of Sears is reversed where the employee presented triable claims under FEHA that Sears: 1) discriminated against the employee because of his disability; 2) declined to accommodate the employee's disability; and 3) did not engage in an interactive process to determine possible accommodation for the employee's disability.

In this action brought under the Fair Labor Standards Act (FLSA), plaintiff "service advisors" who worked at defendant car dealership allege that defendant violated the FLSA by failing to pay overtime wages. Dismissal of the action is reversed as to the FLSA overtime claim and supplemental state-law claims and affirmed as to the dismissal of other federal claims not challenged on appeal, where: 1) "service advisers" at a car dealership are not exempt from the FLSA's overtime pay requirements under 29 U.S.C. section 213(b)(10)(A), which exempts "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles"; and 2) under the Chevron standard, the regulation was reasonable.

Plaintiff-seamen brought suit against defendants, the H.R. director and the captain of the ship. Plaintiff Abdhulhalim alleges that the H.R. director ordered the ship's captain to fire him because he is of Yemeni origin. Plaintiff Mohamed alleges that he was not hired by the same government-owned ship on the orders of the H.R. director because of his religion and his Yemeni national origin, violating both his constitutional rights and his union's collective bargaining agreement with the company. Dismissal of the complaint for lack of jurisdiction is affirmed, where: 1) Abdulhalim's complaint includes at least one claim that could have been brought as a "civil action in admiralty" against the private wrongdoers, and therefore, pursuant to the Suits in Admiralty Act and the Public Vessels Act, should have been brought against the United States rather than against the H.R. director; and 2) because Mohamed could have brought suit in admiralty for breach of the collective bargaining agreement relating to the crewing of the vessel, his exclusive remedy was against the United States.

In this disability discrimination action brought by plaintiff under California's Fair Employment and Housing Act (FEHA) against his former employer, summary judgment in favor of defendant is reversed and the case is remanded, where: 1) plaintiff presented triable claims under FEHA; and 2) it was irrelevant that some of plaintiff's evidence was self-serving, as such testimony was admissible, though absent corroboration, it may have limited weight by the trier of fact at trial.

In this putative class action alleging violations of California's Labor Code, order remanding the case to state court is vacated, and the case is remanded to the district court to allow both parties the opportunity to submit evidence and arguments whether the $5 million amount in controversy requirement had been satisfied, where: 1) because the complaint did not allege that defendant universally, on each and every shift, violated labor laws by not giving rest and meal breaks, defendant bore the burden to show that its estimated amount in controversy relied on reasonable assumptions; 2) defendant relied on an assumption about the rate of its alleged labor law violations that was not grounded in real evidence; and 3) given that the damages assessment included assumptions, the chain of reasoning and the assumptions needed some reasonable ground underlying them.

In this case involving alleged employment discrimination and retaliation in violation of the Americans with Disabilities Act, summary judgment in favor of defendant City is affirmed, where the hearing-impaired plaintiff failed to establish a genuine issue of material fact as to whether the City's stated reason for firing him (his long history of threatening coworkers) was pretextual.

In this action brought under the Fair Labor Standards Act (FLSA) for defendants' alleged failure to pay minimum wages and overtime wages, dismissal is affirmed, where: 1) under Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, a complaint brought under the FLSA cannot merely allege that the employer failed to pay minimum wages or overtime wages, but must plausibly state such a claim; and 2) the complaint in this case did not state a plausible claim because it did not allege facts showing that there was a specific week in which plaintiff was entitled to but denied minimum wages or overtime wages.

In this retaliation suit brought by a URS Energy employee alleging violations of the Energy Reorganization Act whistleblower protection provision (42 U.S.C. section 5851(b)(4)), dismissal of the US Department of Energy (DOE) and URS Corp. from the suit is affirmed, and summary judgment in favor of URS Energy &amp; Construction is reversed, where: 1) before an employee may opt out of the agency process and bring a retaliation suit against a respondent in federal court, the respondent must have had notice of, and an opportunity to participant in, the agency action for one year; 2) plaintiff-employee prematurely filed suit against DOE in federal court; 3) URS Corp. was not adequately named in the employee's original administrative complaint; 4) there was a triable issue as to whether the whistleblowing activity was a contributing factor in the adverse employment action URS Energy took against plaintiff; and 5) plaintiff had a constitutional right to a jury trial for his claims seeking money damages under section 5851(b)(4).

In this action brought under the Racketeer Influenced and Corrupt Organizations Act (RICO) and the Labor Management Reporting and Disclosure Act (LMRDA), plaintiff-union and its subordinate organizations and members allege that defendant Build and Construction Trades Department conducted a campaign of intense economic pressure, as well as acts of vandalism and threats of force, to persuade plaintiffs to re-affiliate with Building Trades and pay dues to it. Dismissal is affirmed, where: 1) plaintiffs failed to plausibly allege any predicate acts or racketeering activity under the Hobbs Act, as the Hobbs Act is not violated based on unwanted or subjectively valueless services in the context of an economic pressure campaign; 2) plaintiffs did not adequately allege that defendants used violence or force against plaintiffs; and 3) plaintiffs failed to state a claim that defendants violated the LMRDA, as plaintiffs were not expelled from the Metal Trades union as a disciplinary action. - See more at: http://caselaw.findlaw.com/summary/opinion/us-9th-circuit/2014/10/28/271922.html#sthash.PxepL8lv.dpuf

In this action, the Equal Employment Opportunity Commission (EEOC) alleges that the tribal hiring preference contained in defendant's leases with the Navajo Nation violate Title VII of the Civil Rights Act. Summary judgment against the EEOC is affirmed, where the Navajo hiring preference was a political classification rather than a national origin classification, and therefore did not violate Title VII. - See more at: http://caselaw.findlaw.com/summary/opinion/us-9th-circuit/2014/09/26/271597.html#sthash.YPePFXPG.dpuf

The district court's grant of a motion to dismiss state-law claims and a motion for judgment on the pleadings is reversed, and dismissal of a federal claim is affirmed, where: 1) section 303 of the Labor Management Relations Act (LMRA) did not preempt state-law claims for trespass and private nuisance related to union activity that may also have constituted secondary boycott activity; 2) federal law does not so thoroughly occupy the field that it always preempts such claims; and 3) the LMRA did not conflict with the plaintiff mall owner's trespass and nuisance claims because the claims touched interests deeply rooted in local feeling and responsibility - See more at: http://caselaw.findlaw.com/summary/opinion/us-9th-circuit/2014/09/23/271535.html#sthash.9fbWfJTg.dpuf

In this class action brought by plaintiff FedEx drivers against defendant FedEx alleging that, under California Law, plaintiffs were employees rather than independent contractors, summary judgment in favor of defendant and denial of plaintiffs' motion for partial summary judgment is reversed, where plaintiffs are employees as a matter of law under California's right-to-control test.

In this class action brought by plaintiff FedEx drivers against defendant FedEx alleging that, under Oregon Law, plaintiffs were employees rather than independent contractors, summary judgment in favor of defendant and denial of plaintiffs' motion for partial summary judgment is reversed, where plaintiffs are employees as a matter of law under Oregon's right-to-control and economic-realities tests.

In the US Department of Labor Secretary's action against the Washington State Department of Social and Health Services (DSHS) alleging violations of the Fair Labor Standards Act, the district court's order compelling the Secretary's response to interrogatories, which would disclose the identities of employees who supported the FLSA claims, is vacated and a writ of mandamus issued to protect these identities because: 1) the timing of employees' statements did not affect their status as informants; and 2) knowledge of their identities would not significantly aid DSHS.

Summary judgment for plaintiffs, fire department dispatchers and aeromedical technicians employed by defendant-city, in an action under the Fair Labor Standards Act (FLSA), is affirmed, where: 1) plaintiffs were entitled to standard overtime pay because they did not fall within an exemption for employees "engaged in fire protection;" 2) plaintiffs did not have the legal authority and responsibility to engage in fire suppression under FLSA sections 207(k) and 203(y); 3) the statute of limitations should be extended from two to three years because of defendant-city's willful violation of the FLSA; 4) liquidated damages should be awarded because defendant-city could not show good faith or reasonable grounds for violating the FLSA; and 5) offsets for overtime payments defendant-city had already made should be calculated on a week-by-week basis.

In an action which alleged that defendant had improperly classified its managers as exempt from overtime, the district court's order remanding the case back to state court is reversed and remanded, where: 1) the action was not moot based on the state court's subsequent determination to certify the class; 2) the second removal of the case under the Class Action Fairness Act (CAFA) was timely; and 3) the CAFA's amount-in-controversy requirement was met.

In an action brought under the Railway Labor Act (RLA) against "carrier employees" of an aircraft service provider, the district court's issuance of a preliminary strike injunction is affirmed, where: 1) the district court's exercise of jurisdiction in this case proper, because the employees are covered by the RLA and have a legal obligation to engage in the RLA's procedures with which they have not complied; and 2) the strike injunction was not overbroad in violation of the First Amendment.

The district court's order awarding attorneys' fees to a prevailing plaintiff under California's Fair Employment and Housing Act is: 1) affirmed in part, where the district court did not abuse its discretion in awarding the prevailing plaintiff $697,971.80 in attorneys' fees where the jury awarded her only $27,280 in damages because, although there was a clear disparity between the damages recovered and the fees awarded, California law did not require the district court to reduce the disparity; but 2) vacated and remanded in part, where the fee award to a paralegal was based upon inadmissible hearsay.

The district court properly denied defendant-employer's motion to compel arbitration in an action asserting claims under California labor law on behalf of the plaintiff and a proposed class of other employees, where: 1) the arbitration policy was procedurally and substantively unconscionable under California contract law and therefore unenforceable; and 2) the state law supporting the unconsionability holding was not preempted by the Federal Arbitration Act because it applied to contracts generally and did not in practice impact arbitration agreements disproportionately.

The district court's order certifying a class of former and current employees of defendant, who allege that defendant committed numerous violations of California labor law, is affirmed, where: 1) the district court did not abuse its discretion by certifying a meal break sub-class, 2) plaintiffs' claims will yield a common answer that is "apt to drive the resolution of the litigation," and 3) common issues of law or fact will predominate

Under the Longshore and Harbor Workers Compensation Act, scheduled wage increases given by a non-union employer to all employees in a certain class based solely upon seniority were a general increase in wages and did not increase a claimant's wage-earning capacity, and therefore, should not be calculated into petitioner's wage-earning capacity for the purposes of calculating disability benefits.

In a new opinion following remand from the U.S. Supreme Court for reconsideration in light of in light of Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), in an action in which plaintiffs allege violations of the federal Fair Labor Standards Act (FLSA), California's Unfair Business Practices Law, and the California Labor Code, the district court\'s certification of the FLSA claim as a collective action and the state-law claims as a class action, is: 1) reversed as to the district court\'s class certification under Fed. R. Civ. P. 23(b)(2) for purposes of monetary relief; 2) vacated and remanded in part, as to the findings of commonality and predominance; and 3) vacated and remanded in part, for reconsideration of class certification under Rule 23(b)(2) for purposes of injunctive relief.

Summary judgment for defendant-employer on plaintiff's claims of disability discrimination and failure to accommodate under the Americans with Disabilities Act (ADA) of 1990 is: 1) affirmed in part, where the district court did not abuse its discretion by granting defendant-employer's motion for reconsideration of its initial order denying summary judgment; but 2) reversed in part and remanded, where viewing the facts in the light most favorable to plaintiff, a reasonable juror could conclude that plaintiff's applications for disability benefits are consistent with her ADA claim, and thus triable issues of fact remain.

The district court's dismissal of a 42 U.S.C. 1983 action brought by plaintiff-police officer who alleged that he was placed on administrative leave in retaliation for disclosing fellow officers' misconduct is reversed and remanded, where: 1) Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir. 2009) is overruled; 2) after Garcetti v. Ceballos, 547 U.S. 410 (2006), courts must make a "practical" inquiry when determining the scope of a government employee's professional duties and that Huppert erred in concluding that California broadly defines police officers' duties as a matter of law for the purpose of First Amendment retaliation analysis; and 3) placement on administrative leave can constitute an adverse employment action

In an action brought under 42 U.S.C. section 1983 and state law, alleging plaintiff was terminated without explanation from her independent contractor position as a nurse for the California prison medical care system and given negative job references that effectively barred her from further employment in the system, the district court's dismissal of the action is affirmed where: 1) plaintiff did not have a constitutionally protected interest in her independent contractor position; and 2) a state agency does not create protected property interests for its independent contractors simply by instituting performance review procedures.

In an action brought under the Private Attorneys General Act of 2004 alleging multiple wage claims, the district court's order denying plaintiff's motion to remand and directing matter to state court is vacated where federal courts lack subject matter jurisdiction over this California dispute because the recoveries at issue cannot be aggregated to meet the amount in controversy requirement.

The petition for review from an Administrative Law Judge's (ALJ) decision which upheld the defendant's finding that petitioner violated the Immigration and Nationality Act and the resulting civil penalty is denied, where: 1) petitioner violated 8 U.S.C. section 1324a(b), which requires employers to verify that their employees are legally authorized to work in the United States; 2) it is neither arbitrary nor capricious to require that employers complete Employment Eligibility Verification Forms (I-9 Forms), and copying and retaining documents is neither necessary nor sufficient for compliance; and 3) the penalties were imposed for substantive deficiencies on the I-9 Forms themselves, and the ALJ's refusal to reduce the penalty was neither arbitrary nor capricious.

In a putative class-action alleging that defendant violated former college football player-plaintiffs' rights of publicity under California Civil Code &sect; 3344 and California common law by using his likeness as part of the NCAA Football video series, the district court's denial of defendant's anti-SLAPP motion to strike and holding that defendant had no First Amendment defense against the right-of-publicity claims of plaintiffs is affirmed, where: 1) under the "transformative use" test developed by the California Supreme Court, defendant's use did not qualify for First Amendment protection as a matter of law because it literally recreated plaintiff in the very setting in which he had achieved renown; 2) the Rogers test which had been created to evaluate Lanham Act claims does not apply in the right-of-publicity arena; and 3) the state-law defenses for the reporting of factual information did not protect defendant's use.

The district court's dismissal of plaintiff-prisoner's claim that defendants violated his Eighth Amendment rights by acting with deliberate indifference towards his serious medical needs is reversed and remanded, where because plaintiff's claim for injunctive relief concerns only his individual medical care, his claim is not already encompassed by the Plata class action, which seeks systemic reform of medical care in California prisons.

The district court's decision not to enforce an arbitration clause and a choice of law clause in defendant's broadband Internet service subscriber agreement is vacated and remanded, where: 1) the Federal Arbitration Act preempted Montana's public policy invalidating adhesive agreements running contrary to the reasonable expectations of a party; and 2) the district court erred in not applying New York law because a state's preempted public policy was an impermissible basis on which to reject the parties' choice-of-law selection.

The district court's orders finding defendant's Locals 21 and 4 in contempt and ordering it to pay compensatory damages arising when defendant engaged in protest activities at a grain terminal and the grain terminal filed charges against defendant with the National Labor Relations Board is: 1) affirmed in part, where the district court did not abuse its discretion when it awarded compensatory damages to the grain terminal, the record supported the amount of damages awarded to the grain terminal and the NLRB, and the grain terminal's participation in the civil contempt proceedings did not exceed the statutorily limited role under Section 160(l) of the National Labor Relations Act given to charging parties in an action before the NLRB; but 2) reversed in part, where the district court abused its discretion when it awarded compensatory damages to Burlington Northern Sante Fe, and the various law enforcement agencies that responded to the scenes of defendant's protests, because those entities were not parties to the underlying NLRB actions

District court's order dismissing plaintiff's breach of contract action for improper venue based on a forum selection clause in an employment agreement, is reversed and remanded, where: 1) the evidence submitted and the allegations made by plaintiff were more than sufficient to create a triable issue of fact as to whether the Saudi Arabian forum selection clause at issue was enforceable; 2) the district court abused its discretion by dismissing on the basis of the forum selection clause without holding an evidentiary hearing as to whether enforcement of the forum selection clause at issue here would effectively preclude plaintiff's day in court, and whether plaintiff was induced to assent to the forum selection clause through fraud or overreaching; and 3) the district court abused its discretion in denying plaintiff leave to amend his pleadings.

Dismissal of four class action suits challenging the policies of brokerage firms that forbid their employees from opening outside trading accounts, is affirmed, where the district courts correctly determined that the federal Securities Exchange Act, and related self-regulatory organizations rules, preempt the enforcement of California's forced-patronage statute against brokerage houses that forbid their employees from opening outside trading accounts.

Summary judgment for defendant-employer in a Title VII action claiming sexual harassment and retaliatory discharge is: 1) affirmed in part, where plaintiff did not make out a prima facie case of sexual harassment because the evidence did not support a finding that the offensive sexual conduct of a co-worker and a supervisor was so severe or pervasive that it altered the conditions of the plaintiff's employment and created a work environment that a reasonable person would consider hostile or abusive; and 2) reversed in part, where the evidence was sufficient to raise a material question of fact as to whether the plaintiff's complaints were a but-for cause of her termination, and the evidence supported a finding that plaintiff was fired because of her protected activity.

Jury verdict against defendant-union officials is affirmed, where: 1) section 501 of the Labor Management Reporting and Disclosure Act creates a fiduciary duty to the union as an organization, not merely to the union's rank-and file members; 2) in actively attempting to obstruct the international union executive committee's decision to consolidate all of its California unionized long term healthcare workers from three different local unions into one, the local union officials breached the fiduciary duty they owed their own union as an organization, and because the breach contravened the union's constitution, it could not have been authorized; 3) the district court did not err in excluding irrelevant evidence, nor in issuing a permanent injunction; and 4) the district court did not err in reading the verdict to impose several liability, and not joint-and-several liability, on the defendants

In a 42 U.S.C. section 1983 action brought by a police officer alleging his salary increase was delayed in retaliation for the exercise of his First Amendment rights, district court's grant of summary judgment is affirmed in part and reversed in part where: 1) plaintiff's speech involved a matter of public concern; and 2) a jury could conclude that plaintiff's union activities and related speech were undertaken in his capacity as a private citizen; 3) the delay in plaintiff's pay increase constituted an adverse employment action; 4) plaintiff's speech was a substantial or motivating factor for the delay; and 5) the Chief of Police was not entitled to qualified immunity for causing the delay.

District court's judgment in a class action brought under the Employee Retirement Income Security Act (ERISA) by plaintiff beneficiaries who alleged that their pension plan was managed imprudently and in a self-interested fashion, is affirmed, where: 1) the district court correctly measured the timeliness of claims alleging imprudence in plan design from when the decision to include those investments in the plan was initially made; 2) mere notification that retail funds were in the Plan menu falls short of providing actual knowledge of the breach or violation; 3) because DOL's interpretation of how the safe harbor functions is consistent with the statutory language, the district court properly decided that section ERISA section 404(c) did not preclude merits consideration of beneficiaries' claims; 4) the revenue sharing as carried out by defendants does not violate ERISA; 5) defendants did not violate their duty of prudence under ERISA by including in the plan menu mutual funds, and a unitized fund for employees' investment in the company's stock; and 5) defendants were imprudent in deciding to include retail-class shares of three specific mutual funds in the plan menu because they failed to investigate the possibility of institutional-share class alternatives.

n a wrongful termination case stemming from plaintiff's complaints about a bank's lending practices, the district court's order remanding the case to state court is affirmed where 12 U.S.C. section 1819, a statute that gives the FDIC the right to remove actions from state court to federal court, is triggered when the FDIC has been sued or when FDIC has been substituted as a party, and neither of those events occurred here.

District court erred in denying plaintiff's petition for review of two Public Law Boards arbitration decisions concerning a dispute regarding a railway employee's discharge, and the order is reversed and remanded where: 1) the district court had jurisdiction under the Railway Labor Act; and 2) plaintiff stated a claim for corruption as to the order of the first Board by alleging that the defendant's Board representative had made an economic threat against the neutral member if she did not change the outcome of the draft decision, and as to the order of the second Board, by alleging that the second Board's neutral member had been made aware of the prior threat.

The Benefits Review Board's (Board) determination that the injuries petitioner incurred in part during his employment were not covered under the Longshore and Harbor Workers' Compensation Act (LHWCA), is affirmed where: 1) he was not an "employee" as defined by the LHWCA and did not satisfy the status test during his assignment; 2) petitioner's injuries as a worker in foreign ports do not satisfy the situs test for coverage; and 3) the ALJ and the Board correctly ruled that petitioner has not shown that he is entitled to equitable estoppel.

In plaintiff's suit against her former employer for employment discrimination under the Age Discrimination in Employment Act, and wrongful discharge, district court's dismissal of the complaint is reversed and remanded where plaintiff's complaint satisfies Rule 8(a)(2)'s pleading standard.

In a long-running labor dispute between a hotel corporation and a union, the district court's grant of a preliminary injunction against the corporation to remedy certain unfair practices committed in violation of the National Labor Relations Act (Act), is affirmed, and the National Labor Relations Board's petition for enforcement granted where: 1) substantial evidence supports the Board's 2011 ruling regarding the corporation's conduct during 2005-2008; 2) the district court did not abuse its discretion by holding that the Regional Director showed a likelihood of success of establishing that the corporation committed an unfair labor practice by not disclosing the requested financial documents; and 3) the district court properly found that enforcement of the ALJ's order serves the public interest.

In a longshoreman's petition for review of the Benefits Review Board's (Board) decision, challenging the maximum rate of compensation, the rate of interest on his past due compensation, and the award of simple rather than compound interest, the Board's decision is affirmed in part, reversed in part, and remanded where: 1) neither the Board's decision nor the Director of the Office of Workers' Compensation Programs' (Director) litigating position interpreting the Longshore Act is entitled to Chevron deference; 2) the Board correctly determined that the ALJ properly applied the maximum rate of compensation for 1991, when the petitioner became disabled; but 3) the Board erred in awarding simple interest on petitioner's past due payments at the section 1961 rate.

In plaintiff's suit against the Commonwealth of the Northern Mariana Islands, claiming wrongful termination without cause from her position as Special Assistant to the Governor for Women's Affairs in violation of Article III, section 22 of the Commonwealth Constitution, the judgment of the district court is vacated and remanded, as plaintiff's termination without cause did not violate the Due Process Clause, because based on the meaning of Article III, section 22 as determined by the final arbiter of Commonwealth law, plaintiff did not have a protected interest in continued employment beyond the term of the governor who appointed her.

District court's judgment denying a former professional football player's motion to vacate an arbitration award, arising from a workers' compensation claim, is affirmed where: 1) petitioner has not met his burden of establishing that the arbitration award prohibiting him from pursuing California benefits violates explicit, well defined and dominant public policy as he has not alleged sufficient contacts with California to show that his workers' compensation claim comes within the scope of California's workers' compensation regime; and 2) because petitioner has not shown that the award deprives of him of something to which he is entitled to under state law, he also has not shown that it violates federal labor policy, nor has he shown that the arbitrator manifestly disregarded the Full Faith and Credit Clause

In a suit by two former ministers against the Church of Scientology claiming they were forced to provide labor in violation of the Trafficking Victims Protection Act, district court's judgment in favor of the defendant is affirmed, as the plaintiffs have not established a genuine issue of fact regarding whether they were victims of forced-labor violations. Moreover, the district court was right to recognize that courts may not scrutinize many aspects of the minister-church relationship in basing its rulings on the ministerial exception.

A petition brought by a maritime employer challenging the decision of the Department of Labor's Benefits Review Board absolving the Office of the Wokers' Compensation Programs (OWCP) from making disability payments, and instead finding the employer liable for payments to its former employee for work-related injuries is denied, as an employee who has a permanent partial disability may be reclassified as temporarily totally disabled during a recovery period following surgery.

In an action by an ERISA plan beneficiary who elected to roll over his pension benefits into an individual retirement account (IRA) upon separation from his employer, alleging the administrator wrongly construed his lump sum rollover as the equivalent of his having "received" his pension benefits and, according to the terms of plan, reduced his long-term disability (LTD) benefits by the amount of the rollover, the district court's judgment in favor of the administrator is affirmed where the administrator made a reasonable interpretation of the plan. Other allegations, that employer failed to sufficiently disclose the possibility that his LTD benefits would be reduced by his receipt of pension benefits, and that the administrator's actions violate the Age Discrimination in Employment Act (ADEA), are rejected.

In an action challenging the termination of plaintiff's long-term disability benefits under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. section 1132, summary judgment in favor of plan administrator defendant is reversed where the district court abused its discretion by dismissing this claim for failure to exhaust administrative remedies, as the exhaustion requirement should have been excused because plaintiff acted reasonably in light of administrator's ambiguous communications and failure to engage in a meaningful dialogue.

In an action by a former employee of California Department of Transportation, brought after defendants determined her psychological disorders made her unfit for reinstatement from disability retirement to active service, alleging that this decision deprived her of her right to a reasonable accommodation under the Americans with Disabilities Act (ADA), 42 U.S.C. sections 12111-12117, and to the equal protection of the laws under the Fourteenth Amendment, district court's Rule 12(b)(6) dismissal of complaint for failure to state a claim on which relief might be granted is affirmed where: 1) Congress's inclusion of a comprehensive remedial scheme in Title I of the ADA precludes section 1983 claims predicated on alleged violations of ADA Title I substantive rights; and 2) plaintiff's allegations of fact do not state a claim under the Equal Protection Clause

In an action by two TV news reporters alleging that their employer discriminated against them on the basis of age, in violation of the California Fair Employment and Housing Act, when the station laid them off as part of its reduction in force, summary judgment in favor of the defendants is affirmed, where: 1) a plaintiff's statistical evidence need not account for an employer's proffered nondiscriminatory reason for the adverse employment action to make a prima facie case of discrimination; but 2) the plaintiffs failed to present sufficient evidence of pretext to survive summary judgment, since the defendants were entitled to a favorable "same-actor" inference.

In a class action by retired employees under section 301 of the Labor Management Relations Act and section 502 of ERISA: 1) summary judgment to the plaintiffs is affirmed, where a) the employer expressly agreed to provide 100% company-paid healthcare coverage for eligible retirees in collective bargaining agreements (CBAs), b) the employer's obligation survived the expiration of the CBAs, and c) the employer's agreed-upon obligation could not be unilaterally abrogated by the employer, regardless of the rights it reserved for itself in plan documents; and 2) the district court's rejection of the retirees' claim for punitive and extra-contractual damages is affirmed.

In a case in which a woman filed applications for both Social Security Disability Insurance benefits and Social Security Income benefits, and an ALJ denied benefits for a certain period, the district court's grant of summary judgment affirming the ALJ's decision is reversed, where the SSA Commissioner erred in concluding that there existed a "significant number" of jobs in the regional and national economy that the plaintiff could do, given the rarity of surveillance system monitor jobs and the plaintiff's physical and mental limitations. Read more...

In an action stemming a former police officer's termination from her employment with a city, the district court's dismissal is affirmed on the grounds of issue preclusion, where: 1) the allegations supporting claims of discrimination and harassment were all alleged and decided against the plaintiff in a prior state-court suit; and 2) it was determined in a prior city administrative proceeding, upheld on review by the state trial and appellate courts, that the city had an adequate justification for the plaintiff's termination that was not a pretext for a retaliatory intent.

In an appeal from an order of the district court dismissing, on summary judgment, plaintiff's complaint for employment discrimination on the basis of age, 29 U.S.C. section 621 et seq., order is vacated where the plaintiff presented a prima facie case of age discrimination and evidence of pretext sufficient to create a material dispute as to whether age-related bias was the "but-for" cause of the defendant's failure to interview and promote him.

In a petition for review of an order of the defendant holding that petitioner violated section 8(a)(1) of the National Labor Relations Act by firing an employee for his outburst during a meeting with petitioner's management, petition is granted with a remand where the defendant-NLRB failed to properly balance the Atlantic Steel factors.

In an appeal from an order of the district court dismissing, on summary judgment, plaintiffs\' class-action complaint for employee misclassifications, order is: 1) affirmed with respect to the dismissal of plaintiffs\' FLSA Section 17200 claims; but 2) reversed on the claims alleging state labor code and unfair competition violations.

In an appeal from an order of the district court dismissing plaintiff-teacher's ADA complaint for employment discrimination, judgment is affirmed where although plaintiff was physically and mentally capable of performing her duties, she does not qualify within the meaning of the ADA because she failed to allege that the defendant's requirement that she be legally authorized to teach was discriminatory.

In a petition for enforcement of an administrative order finding that respondent violated sections 8(a)(1) and (3) of the National Labor Relations Act by prohibiting its employees from simultaneously hold bargaining unit and non-bargaining unit positions, 29 U.S.C. section 158(a)(1), judgment is enforcement where the court lacks jurisdiction to hear respondent's exceptions to the order.

In an appeal from a judgment of the district court denying plaintiff a deduction of costs from a Federal Employee Compensation Act refund, 5 U.S.C. Section 8132, judgment is affirmed where a beneficiary under Section 8132 may deduct his litigation costs only from his gross recovery to determine the amount, if any, of the surplus he must credit to the United States for future benefits.

In an appeal from a judgment of the district court dismissing plaintiff's state claims for age and disability discrimination and wrongful termination on summary adjudication, judgment is reversed where viewing the evidence in the light most favorable to plaintiff, reasonable jurors could find that defendant's proffered reason for terminating plaintiff's employment was a pretext for age discrimination.

In an appeal from a judgment of the district court granting defendant's motion for summary judgment in an FLSA action, 29 U.S.C. section 201, et seq., alleging that defendant-state agency failed to pay overtime compensation to certain social workers, judgment is reversed where defendant did not met its burden of showing that its social worker positions meet the regulatory requirement to enjoy the FLSA's "learned professional" exemption.

In an appeal from a judgment of the district court granting a preliminary injunction enjoining the enforcement of state law would have terminated eligibility for healthcare benefits of state employees' same-sex partners, Rev. Stat. Section 38-651(O), judgment is affirmed because of the court's findings that plaintiffs demonstrated a likelihood of success on the merits because they showed that the law adversely affected a classification of employees on the basis of sexual orientation and did not further any of the state's claimed justifiable interests, and that they had established a likelihood of irreparable harm in the event coverage for partners ceased.

In an dispute arising from a class-action for violations of the Fair Labor Standards Act, 29 U.S.C. Section 216(b), and state labor laws, judgment of the district court denying plaintiff class certification is reversed as an abuse of discretion where a rejected Rule 68 offer of judgment for the full amount of a putative class representative's individual claim does not moot a class action complaint where the offer precedes the filing of a motion for class certification.

In a labor and employment dispute concerning whether 42 U.S.C. Section 1981 retaliation claims are governed by the four-year statute of limitations applicable to claims arising under an Act of Congress enacted after December 1, 1990, 28 U.S.C. Section 1658, or by the personal injury statute of limitations of the forum state, judgment of the trial court is affirmed in part and reversed in part where because they arise under a post-December 1, 1990 Act of Congress, section 1981 retaliation claims are governed by the four-year statute of limitations under Section 1658.

In a dispute concerning whether plaintifff's ERISA claim should have been deemed administratively exhuasted under 29 C.F.R. section 2560.503-1(l), judgment of the trial court dismissing action is reversed because where a claimant seeks review of his or her disability claims, the quarterly meeting rule is restricted to multiemployer plans and therefore inasmuch as defendant failed to render a decision within ninety days of plaintiff's administrative appeal, plaintiff's claim must be deemed exhausted.

In a Section 1983 dispute arising from the suspension of plaintiff's medical staff privileges and involving against whom the plaintiff may bring action, judgment of the district court is affirmed in part and reversed in part because individually named doctor defendants who serve as voting members of credentialing committee may not be sued and where plaintiff failed to show that his due process injuries were the product of institutional policies.

In a labor and employment dispute involving the scope of Cal. Lab. Code section 515(a), judgment of the district court decertifying class on the ground that plaintiff did not meet his Fed. R. Civ. P. 23(a) -(b) certification burden is affirmed because judgment was not an abuse of discretion.

In a labor and employment dispute involving a claim of discriminatory termination under the the FEHA, Cal. Gov. Code sectoin 12940 et seq, judgment of the district court dismissing claim for lack of subject matter jurisdiction is reversed where court had jurisdiction because plaintiff did not dispute the merits of an executive branch decision denying him security clearance, but instead, disputed the bona fides of a professed security clearance requirement while introducing evidence to satisfy his pleading burdens under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).

In a Section 1983 dispute alleging retaliation through adverse employment action, district court's denial of qualified immunity defense is affirmed in part and reversed in part where plaintiff, as Reserve Division Commander of Sheriff's Department, was a policymaker but not during his subsequent position.

In a labor and employment dispute involving employer liability for FMLA and OFLA violations following the termination of plaintiff after an approved medical leave, judgments of trial court are reversed where trial court improperly instructed the jury on the elements of FMLA interference claim.

In a dispute over the scope of government sovereign immunity waiver under the Back Pay Act, 5 USC sections 5596(b)(1)-(b)(2)(A), grant of motion for relief from judgment is reversed because sovereign waiver of immunity applies to interest on an award of back pay for employment termination in violation of the ADEA.

In a suit for back pay, challenging the defendant-employer\'s classification of plaintiffs as \"outside salesmen\", a legal designation that exempts an employee from the FLSA\'s overtime-pay requirement, grant of summary judgment to employer is affirmed where the pharmaceutical industry\'s representatives (detail men and women) share many more similarities than differences with their colleagues in other sales fields, and are thus are exempt from the FLSA overtime-pay requirement.

In an action for sexual orientation discrimination, summary judgment for defendant is reversed where plaintiff produced circumstantial evidence of retaliatory discharge and sexual orientation hostile work environment, such that resolution of this action by summary judgment was error.

In action alleging that Nordstrom, Inc. violated the whistleblower-protection provision of the Sarbanes-Oxley Act of 2002, by terminating petitioner's employment in retaliation for her reporting to supervisors conduct she believed violated the rules and regulations of the Securities and Exchange Commission, the Department of Labor's Administrative Review Board's order dismissing petitioner's complaint as untimely filed is affirmed where petitioner filed her complaint on October 13, 2006, more than 90 days after her final day of work, and equitable tolling did not apply.

In an action alleging wrongful termination of plaintiff's employment by a municipal court and denial of due process of law in his termination, the denial of qualified immunity to defendants is reversed where a reasonable person in defendant-judge's position would not have believed that he was constitutionally required to recuse himself.

In a Fair Labor Standards Act (FLSA) challenge to the City of Oakland's policy requiring police officers to repay a portion of their training costs if they voluntarily leave the City's employment before completing five years of service, summary judgment for defendant is affirmed where, because the City issued plaintiff a paycheck exceeding the minimum wage amount, the City's reimbursement demand did not violate the FLSA's minimum wage provision.

In an action alleging that defendant discriminated against plaintiff because of a disabling work-related injury and failed to accommodate that disability, and then laid him off to retaliate against him for seeking accommodation, summary judgment for defendant is affirmed in part where plaintiff failed to demonstrate either that he applied to be rehired or that it would have been futile to do so. However, the order is reversed in part where plaintiffs' California Department of Fair Employment and Housing (DFEH) charge was deemed filed with the EEOC pursuant to a "Worksharing Agreement" between the DFEH and the EEOC.

In an action brought against a Chinese-language newspaper by some of its California-based employees under the federal Fair Labor Standards Act (FLSA) and under California law, judgment for plaintiffs is affirmed where: 1) the evidence before the district court did not create a genuine issue of material fact as to the reporters' status; 2) the district court did not abuse its discretion in certifying a Rule 23(b)(2) class; 3) the district court did not abuse its discretion in invalidating the opt-outs and in restricting defendant's ability to communicate with class members; 4) substantial evidence supported the jury's verdict; 5) the FLSA does not preempt a state-law section 17200 claim that "borrows" its substantive standard from FLSA; and 5) it was within the district court's discretion to exercise supplemental jurisdiction over the section 17200 claim in this case.

In a sexual harassment case in which a male employee was the victim of a female co-worker, summary judgment for defendant is reversed where there were genuine issues of material fact as to whether: 1) plaintiff was subjected to "verbal or physical conduct of a sexual nature"; 2) such conduct was unwelcome; 3) the pervasiveness and the inadequate response by the employer established a jury question of whether a co-worker's overtures led to an abusive environment; 4) defendant's actions were not enough to establish an affirmative defense.

In an action by flight attendants who were dismissed for sexual harassment, alleging discrimination on the basis of race, sex and national origin in violation of Title VII, summary judgment for defendant is affirmed where: 1) the district court did not err by focusing on the inference of discrimination that was central to plaintiffs' case; and 2) even assuming the female flight attendants reported to the same supervisor as plaintiffs, the two groups were not similarly situated because the female employees' alleged conduct was not unwelcome and never resulted in a complaint.

In an action seeking unpaid overtime wages, business expenses, meal compensation and unlawful deductions from wages under the California Labor Code, summary judgment for defendants is reversed where, under California's multi-faceted test of employment, there existed at the very least sufficient indicia of an employment relationship between the plaintiffs and defendant such that a reasonable jury could find the existence of such a relationship.

In an action challenging the State of Nevada's policy of hiring only female correctional lieutenants at a women's prison, summary judgment for defendants is reversed where: 1) Title VII protects the ability to pursue one's own career goals without being discriminated against on the basis of race or sex, even if others of the same race or sex were not subject to disadvantage; and 2) defendants did not show that "all or nearly all" men would tolerate sexual abuse by male guards, or that it is "impossible or highly impractical" to assess applicants individually for this qualification.

In plaintiff's appeal from the district court's court vacating an arbitral award on the ground of its excessive size and vacating a punitive damages award on the additional ground that the arbitration panel lacked jurisdiction to enter it after the panel had entered its compensatory award, the order is reversed where: 1) the district court erred in concluding that the size of the arbitration awards demonstrated manifest disregard of the law; 2) the fact that the majority of the arbitrators may have made a mistake in citing a benefit that plaintiff had not purchased did not establish irrationality of its ultimate conclusion that defendant breached its contract; 3) nothing in plaintiff's policy expressly withdrew determination of procedural issues from the panel; and 4) defendant failed to demonstrate either evident partiality or evident corruption in the arbitrators.

In an action challenging the amount of attorney's fees awarded to plaintiff in Title VII administrative proceedings, dismissal of the complaint for lack of subject matter jurisdiction is reversed where, under New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980), federal courts have subject matter jurisdiction over claims brought solely to recover attorney's fees incurred in Title VII administrative proceedings.

In a Title VII action alleging discrimination against female employees by Wal-Mart, certification of a Fed. R. Civ. P. 23(b)(2) class of current employees with respect to their claims for injunctive relief, declaratory relief, and back pay is affirmed where: 1) it was within the district court's discretion, and in line with Falcon, to determine that the commonality prerequisite to class certification was satisfied; 2) decentralized, subjective decision making could contribute to a common question of fact regarding the existence of discrimination; and 3) because the discrimination they claimed to have suffered occurred through alleged common practice -- e.g., excessively subjective decision making in a corporate culture of uniformity and gender stereotyping--the district court did not abuse its discretion by finding that their claims were sufficiently typical to satisfy Rule 23(a)(3). With respect to plaintiffs' claims for punitive damages, and as to those class members who no longer worked for Wal-Mart, the certification order is remanded so the district court could consider: 1) whether certification under Rule 23(b)(2) of the punitive damages claims would cause monetary relief to predominate; and 2) whether an additional class or classes may be appropriate under Rule 23(b)(3) with respect to the claims of former employees.

In an action seeking pay for the overtime hours plaintiff worked as a seminarian in a Catholic church in Washington, dismissal of the action is affirmed where the ministerial exception barred the claim because: 1) the First Amendment strongly circumscribed legislative and judicial intrusion into the internal affairs of a religious organization; 2) awarding damages would necessarily trench on the Church's protected ministerial decisions; and 3) plaintiff's complaint demonstrated that plaintiff was a minister for purposes of the ministerial exception.

In a class action on behalf of all technicians employed by defendant to install alarms in customers' cars, in which plaintiff sought compensation for the time technicians spent commuting to worksites in defendant\'s vehicles and for time spent on preliminary and postliminary activities performed at their homes, summary judgment for defendant is affirmed in part where: 1) pursuant to the Employment Commuter Flexibility Act, use of an employer\'s vehicle to commute was not compensable even if it was a condition of employment; and 2) the conditions defendant placed on plaintiff's use of its vehicle did not make his commute compensable. However, the judgment is vacated in part where, on summary judgment, the district court could not determine that plaintiff\'s postliminary activities were not integral to plaintiff\'s principal activities.

In a Family and Medical Leave Act (FMLA) action based on an allegedly wrongful termination, partial judgment for plaintiff is affirmed in part where, under the FMLA, front pay is an equitable remedy to be determined by the court. However, the judgment is reversed in part where the district court erred in denying liquidated damages without making specific findings as to the employer's good faith conduct and reasonable belief that it was not violating the statute.

In an action seeking compensation for defendant's alleged denial of employees' meal breaks, denial of class certification is reversed where the district court abused its discretion when it assumed, for the purpose of Fed. R. Civ. P. 23 certification analysis and without any separate inquiry into the merits, that plaintiffs' legal theory would fail.

In an Americans with Disabilities Act (ADA) action alleging that defendant retaliated against plaintiff for complaining that his manager had discriminated against him based on his disability, an order denying plaintiff the right to seek compensatory and punitive damages is affirmed where the plain and unambiguous provisions of 42 U.S.C. section 1981a limited the availability of compensatory and punitive damages to those specific ADA claims listed, and retaliation was not on the list.

In an action for employment discrimination based on plaintiff&prime;s disability, summary judgment for defendant is reversed where Section 504 of the Rehabilitation Act, 29 U.S.C. section 794, extends to a claim of discrimination brought by an independent contractor because the Rehabilitation Act covers all individuals "subject to discrimination under any program or activity receiving Federal financial assistance."

In an action for unpaid wages under the Seamen's Wage Act, the district court's order granting defendant's motion to compel arbitration is affirmed where claims under the Act are subject to arbitration pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and plaintiff's claim was subject to a valid arbitration agreement.

In an action claiming that defendant-employer violated the Americans with Disabilities Act (ADA) by terminating plaintiff based on her failure to pass a physical capacity evaluation, summary judgment for defendant is reversed where the district court erred in holding that the evaluation was not a medical examination within the meaning of 42 U.S.C. section 12112(d)(4)(A).

In an action claiming that defendant violated the Computer Fraud and Abuse Act (CFAA) by accessing plaintiff's computer without authorization, both while defendant was employed by plaintiff and after he left the company, summary judgment for defendant is affirmed where: 1) defendant was authorized to use plaintiff's computers while he was employed by plaintiff, and thus he did not access a computer "without authorization" in violation of the applicable statutes when he emailed documents to himself and to his wife prior to leaving employment; and 2) plaintiff failed to establish the existence of a genuine issue of material fact as to whether defendant accessed plaintiff's website without authorization after he left the company.

In a sex discrimination action by the EEOC, summary judgment for defendant-employer is reversed where the EEOC introduced adequate evidence from which a reasonable jury could conclude that the reasons defendant advanced to justify its employment actions were pretextual.

Tenth Circuit

Appeals from federal district (trial level) courts in Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming

Affirmed a judgment against an employer in an action brought under the Multiemployer Pension Plan Amendments Act of 1980. At issue was how to calculate the employer's liability for withdrawing from a multiemployer pension plan after its employees voted to decertify a union as their bargaining representative.

In an action claiming that plaintiff\'s reassignment discriminated against him based on his obesity and diabetes, and that age discrimination played a role in his reassignment in violation of the Age Discrimination in Employment Act, summary judgment for defendant is affirmed where: 1) plaintiff was not otherwise qualified to hold the position as required by the Rehabilitation Act; 2) defendant had a non-discriminatory reason for removing plaintiff that was not pretextual; and 3) plaintiff did not allege that the accessing of his health records was intentional misconduct, as required by the Privacy Act.

In an employment discrimination suit against plaintiff's former employer, summary judgment for defendant on the ground that the action was time-barred is reversed where the state anti-discrimination agency's notice in this case did not trigger the 90-day limitation period for purposes of filing a federal action under Title VII, because nothing in the worksharing agreement between the Colorado Civil Rights Division (CCRD) and the EEOC, or relevant case law, supported defendant's view that the CCRD could issue right-to-sue notices on behalf of the EEOC.

In an action alleging that violated plaintiffs\' First Amendment rights while they were employed at defendant school by unlawfully prohibiting them from meeting together to discuss school matters and retaliating against them when they did so, summary judgment for defendants is affirmed in part where: 1) there was no authority suggesting that an employer who expressed a preference regarding employee association thereby imposed an unconstitutional prior restraint; 2) controlling precedent would not have put a reasonable administrator on notice that the speech at each meeting at issue, viewed in the aggregate, was protected by the First Amendment; and 3) the record does not support the conclusion that the school board ratified plaintiffs\' supervisor\'s directives on employee speech. However, the judgment is reversed in part where there was no support for imposing the requirement that a government employee request clarification or complain to his supervisor before being permitted to file a complaint challenging his employer's speech restrictions.

In a Title VII action alleging that Defendant improperly terminated Plaintiff while she was on medical leave, summary judgment for Defendant is affirmed in part, where Plaintiff failed to present sufficient evidence of the intent necessary for religious discrimination; but reversed in part, where there were many reasons to question Defendants' evidence regarding the alleged grounds for Plaintiff's termination.

Eleventh Circuit

Appeals from federal district (trial level) courts in Alabama, Florida, and Georgia

In an action against plaintiff's former employer for unpaid overtime wages under the Fair Labor Standards Act (FLSA), the district court's holding that plaintiff was an exempt administrative employee under the FLSA is reversed and the matter is remanded for a trial on damages where the administrative exemption issue was not tried by implied consent as plaintiff's testimony was relevant to another defense in this case: defendant's independent contractor defense.

In an action alleging claims of religious discrimination, retaliation, and failure to accommodate religious beliefs in violation of Title VII, and retaliation and housing discrimination in violation of the Fair Housing Act, summary judgment for defendants is affirmed in part where plaintiffs called attention to no statutory or case law that could reasonably be believed to prohibit a private employer from keeping its own workplace free of religious references. However, the order is vacated in part where, drawing inferences in favor of plaintiffs, as is required at this stage, a reasonable jury could find that plaintiff's supervisor's alleged comment constituted direct evidence of religious discrimination.

In an Age Discrimination in Employment Act action, summary judgment for defendant is vacated and remanded where a reasonable juror could accept that plaintiff's supervisor made discriminatory-sounding remarks and that the remarks were sufficient evidence of a discriminatory motive which was the "but for" cause of plaintiff's dismissal.

In a hostile work environment action based on the frequent use of gender derogatory language addressed specifically to women as a group in the workplace, summary judgment for defendant is reversed where the evidence was sufficient to afford the inference that the offending conduct was based on the sex of the employee.

In an action claiming that defendant-employer made an improper medical inquiry in violation of the Americans with Disabilities Act (ADA), summary judgment for defendant is reversed where: 1) 42 U.S.C. section 12112(d)(2) did not limit coverage to applicants who were also "qualified individuals with disabilities"; and 2) while the district court correctly concluded that employers may conduct follow-up questioning in response to a positive drug test, it failed to acknowledge any limits on this type of questioning.

In a battery and sexual harassment action, partial judgment for plaintiff and for defendants is affirmed where: 1) defendants failed to show that the compensatory award for emotional damages equal to a claimant's annual income evinced prejudice, passion or corruption on the part of the jury; 2) the $506,847.75 punitive award bore a reasonable relationship both to the harm plaintiff suffered and to the harm likely to result should defendants not be penalized now; and 3) plaintiff was not a prevailing party on her Title VII claim and thus was not entitled to attorney's fees.

D.C. Circuit

Appeals from federal district (trial level) courts in the District of Columbia

In an action by a federal government employee, alleging discrimination on the basis of age in violation of the Age Discrimination in Employment Act (ADEA), judgment for defendant is reversed where, because of what the court had called ADEA section 633a\'s \"sweeping\" language --\"all [federal government] personnel actions . . . shall be made free from any discrimination based on age\"-- plaintiffs may establish liability, though not necessarily entitlement to such remedies as reinstatement and backpay, by showing that consideration of age was a factor in the challenged personnel action.

In an action alleging retaliation in violation of Title VII, dismissal of the action for failure to exhaust administrative remedies is affirmed in part where the district court properly held that plaintiff failed to exhaust one of her claims. However, the order is reversed in part where an employee's right to trial de novo -- whether her employer is the federal government or a private company -- means that she is entitled to a plenary trial of whatever claims she brings to court, and it does not mean that she must sue on claims she has no interest in pursuing.

In an action against the Secret Service claiming that it violated the Rehabilitation Act by retaliating against plaintiff for filing a discrimination complaint and by failing to reasonably accommodate her disability, summary judgment for defendant is affirmed in part where there was no genuine dispute that the Service reasonably accommodated plaintiff's disability. However, the ruling is reversed in part on the ground that the retaliatory actions plaintiff alleged might well have dissuaded a reasonable person from engaging in protected activity.

In an action against a law firm alleging violations of the Family and Medical Leave Act (FMLA), Title VII, the Americans with Disabilities Act, 42 U.S.C. section 1981, and the District of Columbia Human Rights Act (DCHRA), summary judgment for defendants is affirmed in part where the district court correctly held that plaintiff produced insufficient evidence for a reasonable jury to hold pretextual defendant's proffered non-discriminatory reasons for not reassigning her and for terminating her. However, the judgment is reversed in part where there was a genuine issue of material fact as to whether plaintiff was prejudiced by the alleged interference with her FMLA rights.

In an action by an attorney at the Department of Housing and Urban Development (HUD) alleging that HUD retaliated against him in violation of Title VII by transferring him to a non-legal position and by declaring him absent without leave when he failed to report to his new job, summary judgment for defendant is affirmed in part where defendant reasonably concluded that approving plaintiff's leave under the circumstances would set a bad precedent for other employees. However, the judgment is reversed in part where: 1) a reasonable jury to question plaintiff's supervisor's credibility and therefore the legitimacy of HUD's proffered reason for the transfer; and 2) a reasonable jury could conclude that the transfer qualified as an adverse employment action.

In an action against an accounting firm alleging that the firm refused to make plaintiffs partners because of their ages, in violation of the Age Discrimination in Employment Act, summary judgment for defendant is affirmed in part where: 1) plaintiff did not make out a claim under the Lilly Ledbetter Fair Pay Act because he failed to bring a claim involving \"discrimination in compensation\" and point to a \"discriminatory compensation decision or other practice\"; and 2) plaintiff failed to provide any basis upon which a reasonable jury could disbelieve defendant\'s primary explanation for not making him a partner. However, the judgment is reversed in part where plaintiff could state a claim under the New York Human Rights Law by alleging that a discriminatory act occurred in New York.

In a sex and age discrimination action, summary judgment for defendant is reversed where: 1) defendant failed to carry its burden to show that plaintiff did not timely contact an EEO counselor and thus did not exhaust his administrative remedies; and 2) plaintiff did not fail to respond to defendant's exhaustion argument.

Federal Circuit

Appeals from Merit Systems Protection Board and other federal agencies

Affirmed an arbitrator&rsquo;s decision sustaining plaintiff&rsquo;s removal from employment as a corrections officer with the Bureau of Prisons. The Federal Circuit reasoned that there was no claim of prejudice for the delay between the notice of employment infractions and the date of termination and it found plaintiff&rsquo;s other arguments unpersuasive.

Reversing and remanding a US Court of Federal Claims summary judgment ruling that a company's overseas earnings did not entitle them to transitional benefits under the American Jobs Creation Act because their holding that the law only provided transitional relief for income earned between 2006 and 2006 was incorrect.

Reversing a Veterans Court determination that a former serviceperson wasn't entitled to disability benefits because the court erred in holding as a matter of law that pain alone cannot constitute a disability without a specific diagnosis or otherwise identified disease.

Affirming the decision of the Merit Systems Protection Board that the dismissal of a rigger supervisor who tested positive for a prohibited substance in a drug test administered following a crane accident because there was reasonable suspicion he was the cause of the accident, so the drug test was properly administrated and did not violate his constitutional rights.

Reversing a Merit Systems Protection Board decision denying a claim under the Uniformed Services Employment and Reemployment Rights Act that the Department of Defense failed to grant military leave to an employee for active military service because the Board abused its discretion in determining that the employee wasn't entitled to additional leave.

Affirming the decision of the Board of Directors of the Office of Compliance affirming the Hearing Officer's finding that the US Capitol Police engaged in unfair labor practices when it issued a Discipline Warning in response to an officer's protection union activity.

Vacating the decision of the Merit Systems Protection Board that a man's resignation from federal employment was voluntary and not a constructive discharge because the Board's decision was based on incorrect evidentiary procedures, including the inappropriate application of collateral estoppel.

In an appeal of the Final Decision of the Merit Systems Protection Board affirming the decision of the Department of the Navy to furlough petitioner for six days between July and September of 2013 as a result of the federal government sequestration of 2013, the Board's decision is affirmed where there is no reversible error.

In an action seeking review of the Merit Systems Protection Board's decision denying petitioner's request for corrective action under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C.section 4301, alleging that the Department of Energy improperly revoked his security clearance and the Navy improperly terminated his employment thereafter, the Board's decision is affirmed where it lacked the authority to review adverse security clearance determinations and the Navy had not acted improperly in terminating petitioner given the revoked clearance.

In an appeal of the decision of the Merit Systems Protection Board denying petitioner relief for a personnel action taken by the Department of Justice involving claims under the Whistleblower Protection Act, the district court's decision is reversed where the Board's holding that the Government successfully rebutted petitioner's prima facie case, by showing independent causation for the personnel action, is not supported by substantial evidence.

In an appeal of the Merit Systems Protection Board's decision sustaining petitioner's removal from his position as Correctional Officer pursuant to 5 U.S.C. section 7371, which mandates the removal of any law enforcement officer who is convicted of a felony, the Board's decision is affirmed where the Board did not err in finding that petitioner was convicted of a felony on May 6, 2014.

In an action brought by a plaintiff who was terminated from her position as a distinguished consultant at the Centers for Disease Control, the Board's decision that it lacked jurisdiction over petitioner's removal because she had been appointed pursuant to 42 U.S.C. section 209(f), is reversed where although 209(f) places petitioner into the excepted service, it does not exempt her from the Civil Service Due Process Amendments of 1990, which provide appeal rights to certain excepted service employees.

In a grievance against petitioner's employer, which was referred to an arbitrator pursuant to a collective bargaining agreement, the arbitrator's dismissal of the grievance as not arbitrable on the ground that a four-month deadline for holding a hearing, as required by the agreement, had passed, is reversed where: 1) the arbitrator erred because the contractual provision does not require dismissal of the grievance in the event of noncompliance with the four-month deadline; and 2) the deadline is merely a nonbinding housekeeping rule to encourage timely arbitration, one that is addressed to the arbitrator as well as the parties.

In a joint petition for review of an arbitrator's decisions denying grievances filed by a union, challenging the furloughing of bargaining unit employees for six discontinuous days, which was the result of an automatic process of federal agency spending reductions known as "sequestration," the decisions are affirmed where the arbitrator did not err in finding that the furloughs promoted the efficiency of the service and were in accordance with law.

In a breach of employment contract counterclaim in an underlying infringement suit involving patents for inventions related to "Personal Web," the district court's judgment is affirmed where: 1) the court did not err in granting judgment as a matter of law (JMOL); and 2) the court lacks jurisdiction to hear the counter-claim.

In a suit brought by nurses employed by the Department of Veterans Affairs, claiming entitlement to overtime pay under 38 U.S.C. section 7453(e)(1), the Court of Federal Claims final decision dismissing the complaint is reversed where the court erred in requiring that the nurses' overtime be officially ordered or approved by express direction to be compensable.

Removal of petitioner Wrocklage from his position as Customs and Border Protection Officer at defendant Department of Homeland Security (DHS) is vacated and remanded, where the charges of unauthorized disclosure and lack of candor are not supported by substantial evidence. -

In an action for breach of contract, in which plaintiff alleges that defendant-former employer, the government, disclosed details about him to another employer and thereby violated a confidentiality provision of a settlement agreement, the Court of Federal Claims' decision that res judicata barred his claim because plaintiff declined the recission and reinstatement remedies offered by the Merit Systems Protection Board (MSPB), is reversed and remanded, where: 1) the Claims Court possessed jurisdiction under the Tucker Act; but 2) because jurisdictional limits on the MSPB's remedial authority did not permit plaintiff to seek monetary damages for defendant's breach of contract, the MSPB's prior judgment of dismissal does not preclude his suit in the Claims Court.

Dismissal by the Merit Systems Protection Board of petitioner's appeal of her removal from her position as an Assistant United States Attorney is reversed and remanded, where: 1) the seven-plus months during the pendency of petitioner's background check in the months before August 2009 count toward the required 2 years of current continuous service; and as such, 2) petitioner worked for more than two years in the same or similar positions and she comes within the statutory definition of an "employee" who may appeal to the Board.

In consolidated tax refund cases brought by entities that remit payroll and employment taxes on behalf of motion picture and television production companies, the judgment of the United States Court of Federal Claims rejecting plaintiffs' claims for tax refunds is affirmed, where: 1) the scope of plaintiffs' liability for employment taxes under the Federal Unemployment Tax Act (FUTA) and the Federal Insurance Contribution Act (FICA) is determined by reference to the employees' employment relationships with the common law employers for which plaintiffs remit taxes; 2) the common law employers cannot decrease their liability by retaining entities such as plaintiffs to actually make the wage payments to the employees; and 3) plaintiff is barred from raising its theory that it overpaid the FUTA and FICA taxes because some of the individuals classified as employees were independent contractors.

The decision by the Merit Systems Protection Board (Board) denying petitioner's request for corrective action with respect to days for which he alleged that he was improperly charged annual leave or leave without pay while performing reserve military duties, is reversed and remanded, where the Board's decision is not supported by substantial evidence

In an appeal from a final decision of the Merit Systems Protection Board, dismissing as moot petitioner's allegation that the Army failed to comply with an order for corrective action when it assigned him to a position of Program Support Specialist, the Board's decision is affirmed where it did not act arbitrarily or contrary to law

The decision of the Merit Systems Protection Board affirming the removal of petitioner from the position of Federal Air Marshal is vacated and remanded where the Board incorrectly interpreted the Whistleblower Protection Act.